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Zealous Representation

In this post, Scott Greenfield at Simple Justice talks about how zealous advocacy will no longer be necessary in New York starting on April 1, 2009. Arizona attorneys haven’t had to zealously advocate for their clients for years. However, most criminal defense attorneys still promise in their fee agreements that they will zealously represent their clients, and there are still quite a few zealous advocates out there. I doubt that changing the language of our ethics rules had much of an effect.

Interestingly, at least one Justice on the Supreme Court of Arizona disagrees. Every Arizona attorney is required to take a professionalism course. When I took the course, we watched a video of Chief Justice Ruth McGregor talking about the need to increase civility in the practice of law. I recall being confused when she said something to the effect that removing zeal from the rules was a huge step in the right direction. I got the impression that she felt it made a big difference. Can’t an attorney be a zealous advocate while remaining civil? Can removing one little word make such a big difference? How many attorneys really changed the way they represent clients based on that change?

If Justice McGregor is right, I’m worried. How did attorneys eliminate zeal from their representation? Have clients been forced to accept a lesser degree of representation? I’m concerned that may be what the Supreme Court really wanted. If civility was all they cared about, they could have just amended the rule to say “[a] lawyer shall provide zealous representation to a client while remaining civil at all times.” I hope I’m right and that clients haven’t been made to suffer in order to promote civility.

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4 Responses to "Zealous Representation"

  1. Adrian says:

    I’ve been 3/8ths more ethical in AZ than I would have been in a State that allowed zealous representation. Numbers don’t lie.

  2. Andrew (the other one) says:

    If attorneys were being creative enough to cram every misbehavior into zealous advocacy, then I have my doubts that removing the phrase would somehow eliminate that creativity and prevent them from simply finding another provision to latch onto.

  3. Matt Brown says:

    I agree that being a strong advocate, even a zealous advocate, is not incompatible with being civil. I’d put myself pretty high on the zeal scale, but I don’t think anyone would ever describe me as uncivil. I also don’t doubt that the justices’ hearts were in the right place. I just think that, well-intentioned or not, taking out the word zealous wasn’t the way to go. If they wanted to take away a defense for lawyers who act like junk yard dogs, why not make an amendment like the one I proposed? Taking out the word zealous just tells lawyers that zeal isn’t necessary. Adding a civility requirement would tell lawyers that civility is. I know far too many lawyers who are disinterested in and detached from their clients. They’re anything but strong, effective advocates. I feel like removing zeal from the rules is going to give them new excuses for their professional misconduct.

  4. Andrew Becke says:

    As someone who has discussed this matter personally with several of our Supreme Court Justices (including Chief Justice McGregor), I think you are misconstruing the purpose behind removing the word “zealous.” Zealous advocacy was becoming the excuse for every instance of professional misconduct the bar investigated. Attorneys were equating being a “junk yard dog” with effective representation, which is often not the case. Obnoxious and obstructionist conduct does not equate with “better” advocacy, often the opposite is the case.

    One can be a strong advocate for his or her client’s position without being uncivil. The removal of the word zealous from the Lawyer’s Creed of Professionalism was not intended to encourage lawyers to work less hard for their clients or minimize the duties of loyalty or competence to clients, but rather to emphasize that being civil to opposing counsel often garners better results for the client.

    By way of example, there is a lawyer practicing up here in Yavapai County who is absolutely obnoxious in everything that he does with opposing counsel. Every pleading is infused with venom and unwarranted attacks on the integrity of opposing counsel. It is impossible to confer or speak civilly with him. He files unnecessary motions with the court for everything under the sun, 90% of which could be handled by stipulation of counsel. I am sure that this lawyer, referred to as a “rabid raccoon,” thinks that he is getting better results for his clients. He isn’t. Every judge and lawyer in town knows his tactics. He never gets the benefit of the doubt. And, perhaps most importantly, in an era where 95%+ of cases settle before trial (both civil and criminal), parties are reluctant to make good faith offers to him. In this profession, I believe you do catch more flies with sugar.

    Besides, at the end of the day, people practice the way they want, regardless of what the Chief Justice may say. I think her heart is in the right place on this one. If more lawyers are civil, I think more justice is done.

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