Finding the Right Balance of Zealousness, Civility, and Loyalty

• Citation: Vol. 2024 No. 2
• Publication year: 2024
• Author: Written by David Majchrzak

FINDING THE RIGHT BALANCE OF ZEALOUSNESS, CIVILITY, AND LOYALTY

Written by David Majchrzak^*

Perhaps one of the biggest challenges lawyers face when addressing ethical issues is figuring out how to fulfill competing duties. Sometimes there is guidance; but often there is not. Indeed, sometimes there is even an ambiguity in what a particular obligation may be.

Enter a room full of lawyers and ask them how many believe they have a duty to be a zealous advocate for their clients. Without fail, the vast majority, if not the entirety, of the crowd will raise their hands. But when you ask each what that means to them, you may receive a wide range of responses. And there is probably good reason for that.

California's Rules of Professional Conduct contain zero references to being zealous. Nor do they contain any other derivation of the word zeal. And that includes the comments to the rules. Similarly, the State Bar Act is silent on the subject. Yet, the concept of zealous advocacy appears in nearly 200 published California cases. So, where did this originate?

Clearly, it did not derive from the original Zealots, a first-century sect in Judea, which advocated militant opposition to Roman occupation of Palestine, most notably during the First Jewish-Roman law. Nor are lawyers meant to be "fanatical," a word often used to describe zealots, as the term is more generally used.

The Merriam-Webster definition of "zealous"—a word with the same etymology as jealous—is "marked by fervent partisanship for a person, a cause, or an ideal." And this definition seems to fall closer in line to what lawyers, as advocates, often do for their clients. But, it seems to be far from a necessity. Even the unpopular clients need somebody to protect their rights. And the American Bar Association's Model Rule 6.2 suggests that appointments should be declined based on a lawyer's lack of fervor only if "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client." That line appears to be a far cry from a highly enthusiastic approach encompassed by the word "zeal."

Yet sometimes, the expression "zealous advocacy" is used to defend any and all actions that lawyers take on behalf of their clients. Indeed, the first pairing of "zealous" and "advocacy" originated in an 1820 speech that Lord Henry Brougham provided to the English Parliament.⁰¹ And it did not relate to work that was generally viewed with favor.

Lord Brougham asserted that advocates, in carrying out their professional duty, know but one person in all the world, and that person is their client. Accordingly, Lord Brougham said, advocates' first and only

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duty is to save their client at all hazards and costs to other people, including to the lawyers themselves.

Lord Brougham's client was Caroline of Brunswick, a German princess, who had been arranged to marry her first cousin, George IV, while he was Prince of Wales. The goal was to solidify the relationships between England and Germany, and was additionally used by George as a means to get out of a £630,000 debt, an extraordinary sum at the time. He led an extravagant lifestyle, and was both obese and often drunk. George developed a reputation for being a man of style and taste as he was involved with remodeling of Buckingham Palace and the rebuilding of Windsor Castle after a period of neglect. Yet his loose morals and poor relationships with his...