PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
CIVILITY AND CORDIALITY : Limits on Zealous Advocacy ?
JENNIFER S . CARROLL
Do civility and cordiality limit zealous advocacy ?
All too often , in practice , civility , cordiality , and respect simply do not exist . Civility is replaced by rudeness , hostility , and disrespect for opposing counsel , the opposing party , and even for the court . Many believe that if they are in litigation -- it is wartime , and it is part of their duty to “ zealously ” represent their clients . To these folks , civility and courtesy are equated with weakness .
Attorneys are called upon to be “ zealous ” advocates for their clients : they must represent their clients zealously “ within the bounds of the law .” But what does “ zealous ” advocacy really mean ?
“ Zealous advocacy ” is often described in a negative light :
Zealous advocacy is the buzzword which is squeezing decency and civility out of the law program . Zealous advocacy is the doctrine which excuses , without apology , outrageous and unconscionable conduct so long as it is done ostensibly for a client . Zealous advocacy is the modern day plague which infects and weakens the truth-finding process and which makes a mockery of the lawyer ' s claim to officer of the court status .
[ Honorable Judge Richard Illinois Circuit Court Cook County .]
The legal profession is the last bastion of unfettered , unapologetic nastiness , proudly flying the flag of zealous client representation .
[ Noah Feldman , “ Lawyers Can Be Zealous Without Being Nasty ” ( Bloomberg 2016 ).]
Determining civility interrupts the administration of justice . It makes the practice of law less rewarding . It robs a lawyer of the sense of disparity and self worth that should come from a learned profession . Not least of all , it brings with it all the problems that account for low public regard for lawyers and lack of confidence in the justice system . [ Former ABA President , Lee Cooper .]
Zealous representation is open to interpretation . It is not clearly defined .
In its ordinary meaning , the term “ zealot ” means a person who is fanatical and uncompromising . Certainly such behavior would fall outside even the minimum level of professionalism .
Some states , including Arizona , Ohio , Indiana , and Washington , have even removed the word “ zeal ” from their ethics rules . The Washington State Bar Association (“ WSBA ”), for example , replaced “ zealous ” with “ conscientious and ardent ”, and replaced “ zeal ” with “ diligent ”. In support of these changes , the WSBA Board of Governors Report stated :
Owing to its etymology , the word ‘ zealous ’ in this context could inappropriately be interpreted to condone the extreme or fanatical behavior of a type that would be inconsistent with a lawyer ’ s professional obligations .
( quoted in Confidentiality and Candor Under the 2006 Washington Rules of Professional Conduct , 43 Gonz . L . Rev . 327 , 333 ( 2008 )) Ethics and Professionalism ( ABA Litigation §, 2021 ).
Attempts have been made by some appellate courts to temper the zealousness of advocacy with the equally important principles of civility , courtesy , and cooperation . Nix v . Whiteside , 475 U . S . 157 ( 1986 ) (“ an attorney ’ s ethical duty to advance the interests of his client is limited but an equally solemn duty to comply with the law and standards of professional conduct .”) Zealous advocacy does not displace an attorney ’ s obligations as an officer of the court . Azar v . Garza , 138 S . Ct . 1790 , 1793 ( 2018 ).
As stated in In re Marriage of Davenport , 194 Cal . App . 4th , 1507 , 1537 ( Cal . App . 1st Dist . 2011 ):
PBCBA BAR BULLETIN 19 we close this discussion with a reminder to counsel- all counsel -- regardless of practice , regardless of age , that zealous advocacy does not equate with attack dog or scorched earth ; Nor does it mean lack of civility . Zeal and vigor in the representation of clients are commendable . So are civility , collegiality , and cooperation . They are not mutually exclusive .
In The Florida Bar v . Buckle , 771 So . 2d 1131 ( Fla . 2000 ), a defense lawyer was disciplined for sending an intimidating letter to a criminal complainant . The opinion notes that “ zealous advocacy cannot be translated to mean win at all costs , and although the line may be difficult to establish , standards of good taste and professionalism must be maintained .” Taking the word “ zeal ” to its natural conclusion , at least one court has made it clear that lawyers , as advocates and officers of the court , should not be “ zealots .” State v . Richardson , 514 N . W . 2d 573 ( Minn . Ct . App . 1994 ) ( attorney at trial is advocate , and , as an officer of the court , could not be a zealot ).
Attorneys owe duties to their clients -- but also to the justice system itself . Attorneys are expected to represent their clients to the best of their ability and within the bounds of the law . But an attorney is also an officer of the court and must work to maintain the integrity of the justice system . These are not just words .
( Continued on next page )