Zealous Representation: Not an Option

Max Kennerly asks: Is A Lawyer Ever Required To Present An Argument They Don’t Believe?

The answer to the question is, to any true Scotsman criminal-defense lawyer, “absolutely.” We don’t decide whether our clients go to trial, and we don’t pick the facts. If the second-simplest explanation that accounts for all of the government’s admissible evidence is unbelievable even to us, then (unless trial psychosis helps us out by letting us buy our own bullshit) we must present an argument that we don’t believe to the jury.

But Kennerly contends that the answer is “no.” A lawyer, says he, is never required to present an argument she doesn’t (“they don’t”) believe.

According to Kennerly, a lawyer doesn’t have a duty of zealous advocacy. Why does he say this? Because the ABA Model Rules don’t require zeal ((Never trust a lawyer who confuses ethical rules—whether the Model Rules or his state’s disciplinary rules—with ethics.)):

The focus of the Rules, then, is on competence, diligence, and communication, not on the degree of “zeal” felt or exercised by the lawyer.

Sometimes law and ethics clash, and DRs (including the MRs, where they are adopted) are law. Sometimes DRs require things that are not ethically required; often they do not require things that are ethically required.

The MRs, however, are not even the state of the law, whether in Texas, where Comment 6 to TDRPC 1.01 says…:

Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.

…or in Pennsylvania, where Charles Thomas practices…:

A PCHA petitioner alleging ineffective assistance of counsel may not be represented by an attorney from the same office as the allegedly ineffective attorney, regardless of the fact that one started working there after the other left. The later attorney, by reason of his association with the same office, still has an appearance of a conflict of interest threatening his duty of zealous advocacy. Pennsylvania v. Wright, 374 A.2d 1272, 1273 (Pa. 1977).

…or in the U.S. generally:

Although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments. Smith v. Robbins, 528 U.S. 259, 278 n.10 (2000).

In a detour, Kennerly confuses zeal with a lack of caution:

That’s how it should be: one of the essential precepts of the law is the recognition that “reasonable minds can differ” on a wide variety of subjects, including on the most effective way to represent a particular client and whether zeal or caution is warranted in a given situation.

While it’s true that a lawyer can choose the approach to his client’s case that will be most effective (and should, according to the law of requisite variety, have a good number of approaches to choose from), he must choose the one that is most effective. That—and not recklessness—is the essence of zealous representation. A lawyer can be zealous and cautious, zealous and audacious, zealous and temperate; zeal is not optional.

If zeal is not optional, then it appears that Kennerly would agree with me that the lawyer must sometimes—when is the best argument for the client—make the argument that he doesn’t believe in. That, at least, is the implication:

…[W]here is the line drawn between arguments that a lawyer must make (to have performed competently) and arguments that they can make (within the bounds of zealous advocacy)?

If zealous advocacy is mandatory, then there is no line between arguments that a lawyer can make within the bounds of zealous advocacy, and arguments that a lawyer must make to have performed competently. They are the same thing.

Kennerly also digresses into IAC law, which sets a very low bar for representation. Any criminal-defense lawyer whose ethics are satisfied by simply providing representation that doesn’t violate Strickland should go defend insurance companies. Or sell shoes.

In the post that prompted Kennerly’s question, I argued that a lawyer whose ethical qualms will not allow him to make a likely argument that might be legal and effective in the client’s case must give the client notice, before the lawyer is hired, of his fussiness. Kennerly would apparently say otherwise, returning again to the Model Rules of which he is overly fond:

First, the Rule draws a distinction between “general strategy” — about which the lawyer is to keep the client informed — and the details of that “trial or negotiation strategy,” which the lawyer “ordinarily will not be expected to describe.” Second, because the Rule specifically mentions that the client must give informed consent to conflicts of interest, the principle of expressio unius est exclusio alterius (“the express mention of one thing excludes all others”) would imply that a conflict of interest is the only situation in which the client is required to be informed of.

Here, Kennerly misses the point entirely.

Even if Kennerly were right that zeal was optional, even if a lawyer had no duty to present an effective and legal defense, if it were the lawyer’s ethical fussiness that prevented him from presenting such a defense there would be a conflict of interest. The lawyer in this situation has an interest in keeping his hands clean, the client has an interest in the lawyer doing everything legal that might keep him out of prison, and the lawyer must (even under the MRs) get the client’s informed consent before proceeding. ((The lawyer who, upon reflection, thinks that this might not be a conflict that must be revealed to the client has serious ethical problems, way beyond thinking that the MRs contain the whole of legal ethics.))

8 responses to “Zealous Representation: Not an Option”

  1. In DC, the duty of zealousness is explicit in 1.3 (diligence and zeal), though imprecisely defined. In MD, “zeal” is more implicit under competence (i.e. some work cannot be done competently unless done with zeal) and is referenced cautiously in the notes to Rule 1.3:

    “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. 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.” (MLRPC 1.3, Comment 1).

    The DC comments allow an attorney to request of a client not to have the attorney press for a client’s interest if the attorney considers that pursuit unjust, but an attorney may not simply disregard that interest without client permission.

    I raise these examples to show that while zeal is an important professional value and certainly an important aspect of effective assistance of counsel in criminal cases, there may be room for more nuanced/qualified interpretations and applications of the duty of “zeal”, particularly outside criminal advocacy or advocacy generally in courts and quasi-judicial tribunals. Part of competence is prudent judgment, which coexists in cramped quarters with zeal.

    • I think that, like Kennerly, you’re mistaking zeal for lack of caution. I addressed this error in the post. A lawyer can be zealous and prudent.

      An attorney may not disregard the client’s interest in the interest of (the lawyer’s idea of) justice without the client’s permission because there is a conflict of interest.

      The discussion started with Thomas saying that he wouldn’t do something in a criminal case; Kennerly’s question (“is a lawyer ever…”) may be answered affirmatively by considering only criminal cases; civil cases bore me; in sum, I’m not much interested in a discussion of legal ethics in civil cases.

      • I did read your comment about zeal being compatible with caution, etc.; I almost parodied St. Paul’s famous commentary on love in Romans in my comment (“zeal is patient, zeal is vigorous”, etc.) but restrained myself. Kennerly and I don’t agree, while you and I agree on substance, I think (if not lexicon.)

        You and I (and Kennerly?) may be operating off of different implicit definitions of the word, which no rule defines (even DC Rule 1.3 doesn’t) and the Greek root is little help. If it means not putting your own purely personal values over your client’s interests, then whether it’s under “zeal” or under a conscientious definition of conflicts of interest I concur with your view on substance.

      • Yes, we could define zeal so that zealous representation is not required. Again, not how the world works. MRPC notwithstanding, lawyers and courts have believed for very long time that lawyers have a duty to represent their clients zealously. You don’t suppose they meant “recklessly.”

  2. [MB Note: Kennerly’s reading and reasoning skills make me sad. The following comment will make readers stupider for having read it. I publish it here as a monument to the failure of legal education. To prevent too much harm to the reader’s intelligence I fisk it in square brackets.]

    IAC is indeed a low bar as are, one could say, the Rules themselves; [true] this is akin to your distinction between “ethical rules” and “ethics.” [non sequitur] Again, I’m discussing what’s required. Not necessarily optimal. Not what a Platonic ideal lawyer would do. Not what 51 out of 100 lawyers would probably do. Not even what 90 out of 100 lawyers would probably do. What’s required. [I reject this authoritarian limitation of “what is required” to “only what the law requires.” If ethics mean anything, ethics require people to do things that the law does not require; in fact, often ethics require people to do things that the law forbids. What’s required of lawyers is more than the law says. I don’t believe that Kennerly believes that a lawyer is required to do no more than the law provides; rather, he’s scrambling to make some sense of the stupid things he keeps saying.]

    How do you interpret the ABA Model Rule’s comment “A lawyer is not bound, however, to press for every advantage that might be realized for a client”? [“A civil lawyer doesn’t necessarily have to get the client a hundred dollars if the client will be satisfied with ninety.”]
    Seems your view is that the ABA Model Rule is wrong, [Not wrong. Just not illuminating.] and that it is “not an option” to do anything less than pursue “every advantage that might be realized for a client.” (This strikes me as a rather unworkable rule, one because lawyers often disagree, and two because it would force everyone into needless litigiousness for theoretical benefits.) [“Every advantage that might be realized for a client” describes ends, not means of attaining those ends.]

    But, really, the fundamental problem might be this: what do you mean by zealous advocacy? [No, that’s not the fundamental problem. The fundamental problem is that Kennerly is trying to provide cover for the indefensible: a criminal-defense lawyer pulling his punches because he’s fussy.] Sure, you can find a couple courts [actually, many courts all over the place] tossing around [or carefully choosing to use] the phrase, yet nowhere do you even define the term, nor provide any workable standard for its measure. Is this a “I know it when I see it” rule? That’s hardly suitable for a professional requirement. [Kennerly brought up the question of zeal: in an attempt to demonstrate that lawyers never have to argue things they don’t believe in, he claimed (based on the Model Rules) that zeal is not required. But courts (and DRs) all over the country require zeal. So now that I’ve shown that authorities other than the MR require zeal, he retreats to the claim that “zeal” wants definition. If it wanted definition, he should have defined it when he used it.

    In this comment Kennerly tries to redefine both “required” and “zeal” so that “zeal” is not “required” (or now, apparently, “professionally required”). As I demonstrate in the last paragraph of the post, though, it doesn’t matter whether “zeal” is “required”; a criminal-defense lawyer cannot put his interests above those of his client by foregoing some legal and effective argument without, at a minimum, the client’s informed consent.]

  3. “the ABA Model Rules don’t require zeal”
    Neither does the Hippocratic Oath, but we pretty much want that when going into surgery

  4. OK, I know civil work bores you, but as someone who has hired a lot of lawyers over the last two decades for civil work, my expectation as a client is as follows:

    1) My attorneys have lots of discretion in how they handle matters.
    2) However, the sole aim of that discretion is achieving the best outcome for me.
    3) Any exercise of that discretion that doesn’t contribute toward the best outcome for me is inherently a conflict of interest.

    That shouldn’t be hard to understand. Lawyerly discretion is in place to best serve the ends of clients – not to make the lawyer more comfortable.

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