This chapter is presented in advance of publication by the ABA to encourage review and comment on the author’s thesis so that he can identify any errors of fact or thought that ought to be corrected.
There is a small but growing movement to remove any reference to zealous advocacy from ethical codes. Those objecting to this language citing its use by lawyers in disciplinary proceedings trying to justify unethical conduct. There is also a movement in academia to convince law students that zealous advocacy on behalf of certain businesses and industries is wrong, and that they should dedicate themselves to the common good and not to the bests interests of their clients.
I believe that both movements are wrong, that zealous advocacy is an ethic that lawyers must subscribe to, and that zealous advocacy advances the public welfare in ways that advocacy solely on behalf of causes does not.
The first part of this chapter discusses what it means to be a zealous advocate; the second part, what motivates lawyers to practice law the way that they do; and the third part, why zealous advocacy is an essential component of our system of justice.
Part I: What Is a Zealous Advocate?
Examples of zealous advocacy are found throughout fiction and real life. In the movie 12 Angry Men 11 jurors voted to convict a young man of first-degree murder until Juror #8 convinced them that the evidence proved that the defendant was innocent. In real life, Clarence Darrow epitomized the zealous advocate. Darrow is remembered for his defense of John Scopes, who was prosecuted for teaching the theory of evolution; for saving the lives of Nathan Leopold and Richard Loeb, who had murdered fourteen-year-old Bobby Frank in their pursuit of committing the perfect crime; and for his successful defense of eleven Black men in Detroit who were prosecuted for killing a white neighbor during a confrontation with a mob after one of the defendants, Henry Sweet, moved into a white neighborhood.
Many people know that Darrow represented Leopold and Loeb and that he saved them from execution. But not everyone knows that Darrow pled these young men guilty and convinced Judge John Caverly to spare their lives at sentencing. Fewer still that the sentencing proceedings lasted a month, that the state put on 80 witnesses, and that Darrow decided not to dispute the state’s evidence because nothing about the crime was in dispute, only why it happened.
Darrow’s defense was that Leopold and Loeb murdered Frank because they suffered from a diseased mind. In making his case to the court, the defense had to defeat the prosecution’s effort to convince Judge Caverly that the court should exclude psychiatric testimony because Darrow had not raised an insanity defense. Darrow went on to present as modern a defense as any found in a courtroom today, calling to the stand two psychiatrists, an endocrinologist, and a neurologist.
Darrow is also the archetypal example of zealous advocacy gone too far; Darrow was prosecuted twice for attempting to bribe two jurors while defending John and James McNamara, who were accused of bombing the Los Angeles Times in 1910. Darrow’s first trial ended in a not guilty verdict, the second in a hung jury—8 to 4 for conviction.
There is substantial evidence today that Darrow was guilty of attempting to bribe both jurors. In the first trial, Darrow did not quite come out and admit his guilt but argued that if he had bribed the juror, he would have been justified. In fact, he argued, he was not being prosecuted because he attempted to bribe a juror, but because he was “a lover of the poor, a friend of the oppressed because I have stood by labor for all these years” and because the true criminals, the ones who had amassed their power through bribery, were the business groups arrayed against him.
In the Leopold and Loeb case, Darrow was a zealous advocate, providing his clients with the most vigorous representation possible: making brilliant tactical decisions, presenting the best scientific evidence available, and arguing a defense of mental disease without raising the more difficult and often unsuccessful defense of insanity.
But in the McNamara prosecution, Darrow acted as a zealot. Rather than risk a conviction and the certainty of execution, he chose bribery. And when he was prosecuted for bribery, Darrow presented a political defense—that he was being prosecuted because he had stood up for the poor, the oppressed, and labor against a business establishment bent on crushing him.
A federal circuit judge recently told me that our system of justice, civil and criminal, cannot work, and certainly cannot work well, unless there is a contest between advocates representing the interests of their clients with zeal. But what does zeal mean? It’s easy to see that Clarence Darrow provided zealous advocacy in defending Leopold and Loeb, but not when he defended the McNamara brothers. Our adversarial system of justice does not tolerate lawyers who violate rules of professional conduct or break the law. As the lawsuits to overturn the 2020 election have shown, any lawyer who believes that their client’s cause justifies filing lawsuits with no basis in fact soon realizes that there is a price to be paid for abusing the judicial system—a price that may cost them their freedom, the loss of their reputation, and the privilege of practicing law.
A federal district judge who was previously a state judge and before that a federal prosecutor said to me recently that the level of incivility between civil lawyers is at times disheartening, whereas dealings between defense attornes and prosecutors are generally cordial. Conduct that is far more often exhibited in civil litigation than in criminal, such as maliciously accusing opposing counsel of misconduct, obstructive behavior during depositions, or willfully disobeying court orders (the list goes on and on) is not advocacy at all. Such conduct too is sanctionable, and when uncovered, no one is fooled by the claim that counsel was justified in their actions by the obligation of zealous advocacy.
Any discussion of what it means to be a zealous advocate should begin with an acknowledgment that, with the exception of the District of Columbia and Massachusetts, no jurisdiction expressly requires that a lawyer be a zealous advocate on behalf of their client.
The ABA Model Rules of Professional Conduct, which has been adopted in some form by every state uses the words zeal, zealous, or zealous advocacy only in the preamble and in the comment to Rule 1.3, neither of which impose a binding obligation on lawyers. Indeed, thirteen states, have had these words removed from their ethical rules. Florida is considering whether to join them.
In criminal cases, lawyers and law professors have anchored the obligation of zealous advocacy in the right to counsel guaranteed by the Sixth Amendment and in the right to due process of law provided for by the Fifth and Fourteenth Amendments. Although the Supreme Court has opined on what zealous advocacy means, the Court has set a very low bar for the kind of representation defense counsel is constitutionally required to provide—a bar far lower than zealousness.
The Supreme Court discussed zealous advocacy in McCoy v. Ct. of Appeals of Wisconsin, observing:
The attorney must … provide his or her client precisely the services that an affluent defendant could obtain from paid counsel….the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.
However, the Court has not held that the Constitution requires that a defendant receive the assistance of a zealous advocate. The Sixth Amendment requires only that a defendant receive “effective assistance of counsel.” In Strickland v. Washington, the Supreme Court held that in order to establish that a defendant did not receive effective assistance of counsel the defendant must demonstrate that counsel “made errors so serious that counsel was not functioning as ‘counsel,’” and that counsel’s lapses rendered the trial so unfair as to “undermine confidence of the outcome.” What this means is that a lawyer need only be “reasonably effective,” and that in considering a claim that defense counsel did not do all that counsel should have on behalf of a defendant courts, were to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” To make it perfectly clear that the measure of professional competence was not to be defined by ethical provisions which might place a higher burden on counsel, such as one of zealousness, the Court stated that ABA Standards and the like are merely “guides.”
There is as big a difference between “effective assistance of counsel” and “zealous advocacy,” as there is between a not-guilty verdict and life behind bars. Where a lawyer has failed to live up to their obligations under the very low standard of “effective assistance” there are consequences: a new trial for the defendant, potential sanctions against the lawyer by the bar, and in rare cases a malpractice suit. Where a lawyer fails to provide the most effective representation they are capable of, who is not zealous in their representation of the defendant, the defendant has no remedy—even in instances where they are actually innocent.
The same situation applies in civil practice as well. There is no requirement that an attorney provide zealous advocacy in their representation of a client. But, unlike criminal practice (except in rare cases) civil counsel faces the very real threat of a malpractice suit if counsel is negligent in their representation. That provides some impetus for counsel to provide careful if not exactly zealous representation.
Part II: What Motivates Lawyers to Practice as They Do?
So why should we even care about being zealous advocates? I will try to provide an answer to that question before the end of this essay, but first, we need to address what motivates us to be enthusiastic advocates on behalf of our clients. Whether or not we are committed to being zealous advocates in the practice of law, that is not something we think about when we file a lawsuit or make an opening statement to a jury. When we first meet with a client, and they tell us their story, and they ask us our advice what to do, or tell us what they want to do, we may become emotionally involved in the wrong they have suffered. We may hear how they acted in self-defense, or how they trusted a partner in their business, or lost a child in an accident. The more time we spend with our client and their family, and the more evidence we uncover that supports their claims, the more committed we become to righting the wrong or making them as whole as possible.
Or we may have no sympathy for the client at all. We may represent a company in a commercial dispute and the rightness or wrongness of their cause is completely irrelevant to us. The only thing that is important is prevailing in the lawsuit. Here we are motivated in part by the money we will earn for our efforts. But only in part, because we will be compensated whether we win or lose (unless it is a contingency case). What causes us to be enthusiastic in our efforts is pride in our work and if we are litigators, an overwhelming desire to win and to be regarded by our peers and the public as the best (or most feared) trial lawyer around. This is equally true for lawyers who are not litigators but want to be known as the “go to” lawyer for every aspect of practice, from administrative law to zoning.
We are also motivated by the client’s expectations.
Civil and criminal clients may have different motivations, the former—redress for alleged harm or insult or defeating liability for the alleged harm or insult; the latter—the defendant’s freedom, livelihood, and reputation. But lawyers generally believe that prospective clients are looking for a fighter, that clients want someone who will be just as angry as they are and will “fight like hell” for their cause. And their idea of a fighter is someone who will act aggressively on their behalf. And therein lies the root of the problem when lawyers are faced with disciplinary action. It is also the root of the problem when acting aggressively is not in the client’s interests. I believe that much of the bad behavior we see in our practices is caused by the impetus to satisfy our clien’s actual or perceived expectations.
Sometimes the task requires that we act aggressively. I once had to cross-examine a middle-aged woman who had accused my client, the president of a medical records review company, of instructing her physician employees what life expectancy determinations to issue for each policyholder. The witness was assuredly viewed positively by the jury after the government’s direct was completed. But she had lied several times in the past, and as I took her through her lies, I became more confrontational, more accusatory, and by the time I became cruel, the jury didn’t hold it against me; she had betrayed their initial trust and they were angry.
On other occasions, when you have an important government witness (often an expert) whom you believe can provide testimony that will support your defense, you might treat them with kid gloves. I once cross-examined the president of the New York Mercantile Exchange about hedging precious commodities. I was able to lay much of the foundation for my defense through his testimony. When he got off the stand, he walked up to me, held out his hand, and said he appreciated how much of a gentleman I had been. I was flabbergasted. And my client was none too happy by my failure to destroy this witness in cross (his anger was somewhat assuaged when the jury came back with a hung verdict).
Part III: Why Zealous Advocacy Is an Essential Component of our System of Justice
If there are various motivations driving us to do our best for our clients, why do we even need to consider whether there is an obligation to be zealous advocates, whatever the limitations of such advocacy are in a particular case?
I suggest that zealous advocacy is critical to our identity as members of a profession engaged in the practice of law, not just people engaged in a business. Admittedly, this runs counter to both public perception and the actions of some lawyers who only view their work in terms of the wealth it can generate. And that perception could become reality if we as individuals do not commit ourselves to a calling that is greater than just a way to generate invoices.
Zealous advocacy should have as powerful a hold on the practice of lawyering as the so-called “Protestant Work Ethic” has had on the exceptionally driven American work force. It impels us to do the best for our clients even when we detest them, be they serial killers or corporate polluters. Those are extreme examples, but in the run of cases, our clients rarely inspire us or pay us so much that we are more motivated to win their case than we are for a client paying us much less. And for those who represent persons accused of crimes, often for much less money than they could make in civil practice. For those like myself who practice criminal law, the commitment to being zealous advocates is what keeps us from burning out even though 90+ percent of our clients are convicted and go to prison. It is what causes us to forge ahead when the only thing we can do is convince the judge to impose a lower sentence than that sought by the prosecutor.
Some believe that eliminating zeal from ethical codes will reduce ethical violations or lapses. As I have tried to show, it is not zealous advocacy that is responsible for lawyers engaging in improper conduct. The causes of misbehavior will not suddenly evaporate with the elimination of language from an ethical code. Moreover, when individual lawyers abuse the legal system, there already are remedies that judges and bar associations can employ to sanction their misconduct. Indeed, the lines that lawyers must not cross are clearly identified in all ethical codes. For instance, the Model Rules specify:
The duty of adhering to strict truthfulness and avoiding deception (Rule 3.3), using the legal forum and process for legitimate means (Rule 3.1), respecting the forum as an officer of the court (Rule 3.5), duty not to abet fraud and misconduct (Rule 3.3(a)(2), 3.3(c), and 3.4(b)), duty not to engage in conspiracy or collusive conduct that benefits the lawyer or the client (Rule 3.3, 3.4, and 3.5), duty not to assert frivolous claims or defenses (Rule 3.1), duty to expedite litigation (Rule 3.2), a duty of fairness to opposing counsel and not to make untruthful statements to third parties (Rule 3.4 and 4.1), a duty not to use false and misleading evidence and misinformation (Rule 3.4), and to show candor to the tribunal (Rule 3.3(a))
Where lawyers engage in practices that undermine the balance of power between parties, either through the filing of frivolous pleadings or unnecessary depositions, or boorish behavior, these provisions provide ample grounds for discipline by bar associations.
Where these provisions have failed to ensure that counsel acts within the bounds set by ethical rules, the demands of constitutional rights, or even the prevailing moral values, courts and legislatures have enacted rules and statutes to address abuses. For instance, when the practice of withholding exculpatory information from defense counsel in violation of the Supreme Court’s decision in Brady v. Maryland, had become widespread among federal prosecutors, Congress enacted legislation to give the courts greater authority to sanction prosecutors who failed to follow the law. When prosecutors were striking jurors based on race, the Supreme Court stepped in to stop the practice. But that does not mean prosecutors will suddenly become less zealous in their pursuit of justice.
Lawyers will occasionally confront hard questions that test their judgment in determining the best course of action. In 1966, Professor Monroe Freedman posited three such questions that he believed had to be resolved in favor of the defendant. They were: (1) is it ethical to discredit a truthful witness; (2) is it proper to knowingly put a witness on the stand who will commit perjury; and (3) may a lawyer provide a client with legal advice when the lawyer suspects the client may use that advice to commit perjury? (His answers so angered Chief Justice Warren Burger, that Burger sought to have Freedman disbarred.) Fifty years later, Professor Todd Berger offered three more hard questions:
(1) What is the ethically appropriate response when a victim of a crime who does not wish to pursue prosecution asks a criminal defense attorney, “So, what happens if I don’t come to court?”
(2) What should defense counsel say to a judge who directly asks counsel about incriminating information that is protected by attorney-client confidentiality when the judge can easily infer that defense counsel’s refusal to answer such a question is an indication of the client’s culpability?
(3) Can defense counsel zealously advocate for an individual client if doing so would potentially anger a prosecutor who is likely to retaliate by punishing the attorney’s other clients?
Professor Berger demonstrated that counsel can find the answer to these questions, or at least meaningful guidance, in the rules of ethics. Zealous advocacy only comes into play when counsel must make a judgment call. In that case the Supreme Court’s decision in McCoy tells lawyers that, “the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.”
There are also some in academia who argue that law students should be taught that the public good comes before the interests of the client. Of course, the academics who espouse this philosophy believe that what is in the public interest is not subject to debate. Most of them have spent the greater part of their careers teaching and little time actually representing clients. A full discussion of their ideas is beyond the scope of this chapter but I will make a few observations.
With rare exceptions, such as where a lawyer is appointed by a judge to represent an indigent defendant, a lawyer is never required to represent any particular individual or cause. If a law firm or public office orders a lawyer to represent a client in a matter that the lawyer cannot in good conscience handle, the lawyer can and should resign. In other words, the ethic of zealous advocacy suggests that if you cannot be a zealous advocate, don’t be an advocate at all.
For lawyers who believe that they should dedicate themselves to some public interest, representing parties in litigation they hope will change society gives them plenty of opportunities to serve the public interest. For example, those who believe that the administrative state has harmed small businesses and stifled competition can represent businesses to limit the reach of regulations; those who believe that school boards have limited the First Amendment rights of students by banning books from school libraries can file suit on behalf of the American Civil Liberties Union. Indeed, it is difficult to conceive of a mechanism that can bring more issues to the consciousness of the American public or more vividly illustrate the differences in values expressed by those issues than litigation instituted by zealous advocates.
This brings us to the final avenue available to lawyers who seek to change the status quo. Like any citizen, they can lobby for legislation that promotes their vision of the public good. And they can vote for those who share their vision.
Some of these behaviors are hardwired. Our relationships with others arise in part from empathy, which can be traced to certain areas of the brain. Knowing right from wrong is something children learn from their caregivers. Being a zealous advocate is something we do in part because of who we are but also because of what we aspire to be. No one will be punished for being diligent but not zealous, but being zealous advocates is what makes our work a profession and why our profession is better for it.
When we begin the practice of law, at least those of us who do civil and criminal litigation, we are determined to obtain the results our clients have hired us for.
Now, we may be motivated by our desire to become great trial lawyers, or our desire to become wealthy, or maybe fear of losing our jobs or not making partner if clients are unhappy with our performance. But singularly or in combination, these cause us to do the best work we are capable of.
But the vast majority of us do not become great trial lawyers. We become competent which is enough for us to be effective. We become well-off but not wealthy (at least not like our friends from college who became corporate executives or managed funds) and we don’t make partner at an AmLaw 100 law firm; instead, we become partners in small or midsize firms or sole practitioners.
Not everyone, for sure, but many lawyers begin to rely more and more on what has worked in the past and become less committed to the desire to win. Criminal defense attorneys who now plead up to 98% of their clients and rarely go to trial, begin to lose their enthusiasm for their work and come to think of themselves as cogs in the system. Eventually, these lawyers become less effective and enthusiastic advocates.
Throughout this evolution, the one thing that stays the same is the client’s expectation that they are hiring a lawyer who is going to do the best job the lawyer is capable of. Whether express or implied, lawyers agree to do just that. Based upon that commitment, counsel is ethically obligated to provide the kind of representation the client has paid for.
The ethic or culture of zealous advocacy is the commitment we make to ourselves to counter all the things that happen in life that get in the way of our obligations to our clients. That is what makes our work a profession and not just a job.
