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ly clocked his on the courthouse steps after a hearing . There have been incidents that planted a seed of bad feelings between a judge and a lawyer that continued for years , slowly boiling , rising up now and again but never coming to the top , their faces revealing what their words never expressed . When clients show excessive zeal , the advocate ’ s duty is to shield them from censure , and never , never to be so caught up in the passion of the client that it colors the lawyer ’ s own performance .
Caring deeply can bring out the tiger in even the most stoic of attorneys . We try to appear so cool . We try not to show how we feel . A glancing blow of a comment from the Court , a ruling that cuts our case to the bone , an exhibit deemed inadmissible , an objection to an important question sustained , and mostly we bow , and even sometimes say , “ thank you , your honor ,” as if grateful for the instruction . Outside again , in the parking lot , we bang our foreheads on the steering wheel .
The cost of trial work is high on the practicing attorney . Most prefer doing their arguments by motion , from their aerie , their hands poised over a keyboard , painlessly advancing our clients ’ causes . Zeal on a page is not as loud as zeal in the courtroom , but it carries less risk of censure or correction .
The tension between our roles as advocate and as an officer of the court can be terrible . You must act when the occasion calls for it . You must risk the disapproval of the court to make your point , while remaining respectful enough to avoid an explosion from the bench .
Raising your voice is not always rude . Your body , your arms , your eyes , your mouth , all communicate the importance of your legal position . The color of your face is a barometer .
Hold it in and you ’ ll eventually get an ulcer , a stroke , or perhaps a bad headache . Let it out and you risk compromising your client ’ s cause if you go too far . You have to know when to stop . You may want a recess to put yourself back together . Going to a quiet place ( a bathroom ) and taking deep breaths , splashing water on your face , stretching , yawning , sighing , recovering , and going back into the courtroom — this is courage , self-restraint , wisdom . This is a professional necessity .
In the former State Library , I met a man while I was standing at the photocopier . He told me he had just been released from jail . “ What did you do to get you in that place ?” I asked . He had gone to the Washington Superior Court to pick up the decision in a case in which he was appearing pro se . In the lobby , as he read the order , he said something aloud to himself about the judge . He was promptly tackled as he left the courthouse , shackled , brought before
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the judge , and sent for several weeks to jail for his contumely . I decided the best response to this news was saying nothing . We were in the same building as the Supreme Court , after all , and I had copying to complete .
Warm Zeal
The first ABA code of ethics required a lawyer to represent a client zealously ( 1909 ). Sixty years later , the code added a corrective , “ zealously , within the bounds of the law ,” and the latest version leaves out the word “ zealously ” from the rule . Today , Rule 1.3 of the Rules of Professional Conduct , defines “ diligence ” this way : “ A lawyer shall act with reasonable diligence and promptness in representing a client .” Although not in the rule , “ zeal ” appears in the first comment to 1.3 : “ A lawyer should pursue a matter on behalf of a client despite opposition , obstruction or personal inconvenience to the lawyer , and take whatever lawful and ethical measures are required to vindicate a client ’ s cause or endeavor . A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client ’ s behalf .” The comment goes on to raise an eyebrow about too much zeal . “ A lawyer is not bound , however , to press for every advantage that might be realized for a client . For example , a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued .”
Michael E . Tigar , noting the change , nationally , wrote that litigation without passion , “ as in love ,” is “ not wholly satisfying .” He saw that in “ the name of softening up the image of our profession , the warm zeals are a threatened species . They are clubbing the warm zeals to death to make coats for rich people .” 4
Writers have used the term “ warm zeal ” for many years . Calvinist preacher Jonathan Edwards used the phrase in a book published in 1695 . Criticizing another writer who accused some preachers of zeal , Rev . Edwards wrote , “ if zeal found in conjunction with Warmth , be blame-worthy , then I would fair know of him where he can direct us to find out any kind of zeal , which will not come under the same condemnation . In all his great reading did he ever meet with any Author who furnished him with the notion of a cold zeal ; or in this case did he ever meet with any medium between hot and cold , i . e . a luke-warm zeal ?” 5 John Dryden called zeal “ the pious Madness of the Mind .” 6 Jeremy Belknap used zeal in a hymn :
True zeal is merciful and mild , Can pity and forbear ;
The false is headstrong , fierce and wild , And breathes revenge and war . 7
Our own official ethicist , Michael Kennedy
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, discussed zeal in November ’ s blog . He synopsized the code on diligence , bluntly , as “ Don ’ t be a jerk .” 8 Kennedy notes the comment to Rule 3.5 : “ A lawyer may stand firm against abuse by a judge , but should avoid reciprocation ; the judge ’ s default is no justification for similar dereliction by an advocate . An advocate can present the cause , protect the record for subsequent review and preserve integrity by patient firmness no less effectively than by belligerence or theatrics .” In a contest between advocacy and decorum , Kennedy concludes appropriately decorum must prevail .
The Preamble to the Code , also in a comment , seems to grant attorneys more liberty with their zeal when there is competent counsel on the other side . “ Thus , when an opposing party is well represented , a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done .” I suppose this is because another attorney will provide the counterweight , and the zeal of one would balance the zeal of the other .
Vermont cases on zeal
Case law on zeal is interesting . Some of it comes from lawyer misconduct cases . Lawyers have been accused of not showing enough zeal . A lawyer was accused of having her zeal undermined out of sympathy for the Department of Children and Families , through whom she had adopted a child herself , while representing a father in a termination of parental rights case . The high court found her to have not such a personal interest that it prevented her from effective representation . 9 In another decision , defense counsels ’ false denials they were recording a telephone conversation with a potential witness did not reflect adversely on their fitness to practice , according to the high court . The consequences of zeal were mitigated by the sincerity of the respondent attorneys . The court held that respondents “ engaged in an isolated instance of deception . All indications were that they earnestly believed that their actions were necessary and proper .” 10
Context is everything . The court looks not only to the words uttered but also to “ the connection in which they were used , the tone , the look , the manner , the emphasis .” 11
The Ninth Circuit has concluded that an attorney “ never has the right to let his temper , his zeal , or his intention lead him into disrespectful , accusative language to the court .” MacInnis v . United States ( 1951 ) contains a report of an attorney who wouldn ’ t give up his position that he had a right to ask a question of a witness . The question triggered an objection from opposing counsel and the trial judge had sustained it . The tension mounted as the attorneys and the
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Ruminations |