The Myth and the Mischief of Zealous Advocacy

• Publication year: 2005
• Pages: 33

34 Colo.Law. 33 Colorado Bar Journal 2005.

2005, January, Pg. 33. The Myth and the Mischief of Zealous Advocacy

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33

Vol. 34, No. 1, Pg. 33

The Colorado Lawyer
January 2005
Vol. 34, No. 1 [Page 33]

Features
CBA President's Message to Members
The Myth and the Mischief of Zealous Advocacy
by Steve C. Briggs

An incompetent attorney can delay a trial for months.
A competent attorney can delay one much longer.1

Last month, I discussed possible explanations for why some lawyers engage in conduct that contributes to the negative image of lawyers. This behavior ranges from incivility to overbilling to abuse of the discovery process, including various forms of lying. I suggested that none of these explanations are real justifications.2

Interestingly, the most common justification offered by these lawyers for their conduct is a claimed conflict between their duties as advocates for their clients and as officers of the court. This supposed conflict is in fact a fallacy, based on a myth that contributes nothing but mischief to our legal profession and our image. It is the myth of the duty of zealous advocacy.3

The Lack of Need for
"Zealous Advocates"

Let's begin with our actual duties as described in the Colorado Rules of Professional Conduct ("Rule" or "Colorado Rules"). Under Rule 1.1, a lawyer must provide competent representation. Rule 1.3 requires that a lawyer act with reasonable diligence and promptness, and not neglect a legal matter. Under Rule 1.6, a lawyer shall not reveal confidential information relating to representation of a client. Rule 1.7 proscribes conflicts of interests

Aside from the duties to the client, Rule 3.1 provides that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue, unless there is a basis for doing so that is not frivolous. Rule 3.3 addresses a lawyer's duty of candor toward a tribunal. Rule 3.4 states that a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal evidence or knowingly disobey an obligation under the rules of a tribunal. That includes the rules of discovery

A lawyer also shall not allude to evidence that the lawyer does not reasonably believe is relevant or is otherwise inadmissible. Rule 4.1 provides that a lawyer shall not make a false or misleading statement of fact or law to a third party. Rule 8.4 defines unprofessional misconduct to include engaging in conduct that is prejudicial to the administration of justice.

Diligence, competence, confidentially, with no conflicts of interest: elegant simplicity. The rules are comprehensive, describing a lawyer's duties not only to clients, but also to others. In short, the word "zealous" is not a word needed to describe a lawyer's ethical duties.

Now let's look at where the word actually appears in our Rules. The Preamble includes the following: "As an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." The Preamble further states:

A lawyer's responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious. 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.

This does nothing to explain what the supposed duty encompasses. The commentary to Rule 1.3, the rule on diligence, states in part: "A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." Again, there is no mention in the rule...