Finding the Right Balance of Zealousness, Civility, and Loyalty

ISSUE 2, 2024

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 family rendered him fairly unpopular. And unbeknownst to most, while Prince of Wales, George had secretly married his mistress, Maria Fitzherbert, a Roman Catholic widow. Because marriage to a Catholic meant forfeiture of the British crown, this was a closely-kept secret, and the marriage to Caroline would provide him some cover.

Caroline and George had not even met before their wedding in 1795. And neither was happy with the other. Among other things, George complained that Caroline was unattractive—she was short and stout—and had bad hygiene, including that she rarely bathed or changed her undergarments. By George’s account, they had sexual relationships only thrice, but that was sufficient to provide George with an heir, Princess Charlotte, who was born in 1796. George limited Caroline’s contact with Charlotte to supervised visits, requiring instead that his daughter be cared for largely by governesses and servants. In fact, three days after his daughter’s birth, George had a new bill created that precluded Caroline from having a role in Charlotte’s upbringing, provided for Caroline to receive but a single shilling, and left the remainder of George’s possessions to Fitzherbert. Frustrated, Caroline separated from George in 1797.

Rumors of Caroline’s infidelity were circulating at least as early as 1806. She developed a reputation for attending many parties and dancing, sometimes without clothing above her waist. In 1814, Caroline moved to Italy, where she employed Bartolomeo Pergami as a servant, though he became a close friend who accompanied her everywhere, including to these parties. And so the rumors grew.

When George’s father died in 1820, Caroline returned—despite being offered £50,000 not to do so—and demanded to attend the coronation as the queen. But George wanted to prevent that and could effectively do so only if Caroline no longer was part of the royal family. At the time, the only viable ground for a divorce was adultery, and George had no evidence.

Later that year, George introduced the Pains and Penalties Bill to Parliament accusing Queen Caroline of adultery with Pergami, "a foreigner of low station." Her conviction would have resulted in her divorce from the King and the loss of her title and rights as queen consort. In his opening statement on behalf of the Queen at her trial, Lord Brougham delivered a fearsome threat—or, as he described it afterwards, a "menace." As Lord Brougham explained in his autobiography, this threat was "neither more nor less than impeaching the king’s own title, by proving that he had forfeited the crown." The ground for the King’s expulsion from the throne was that "[h]e had married a Roman Catholic … while heir-apparent," and such a marriage is "declared by the Act of Settlement to be a forfeiture of the crown, ‘as if he were naturally dead.’" To drive his threat home, Lord Brougham prefaced his presentation to Parliament by stating that, if exposure of the King’s illicit marriage were necessary to protect the Queen, he would not "hesitate one moment in the fearless discharge of [that] paramount duty."

There was much social and political unrest. Many members of the army, like a large proportion the English people, enthusiastically favored the Queen over the King, and one cavalry regiment vowed that they would "fight up to their knees in blood for their queen." Exposing this information almost certainly would have led to civil war. At the very least, disclosure of such scandal would risk destabilizing the government.

In the face of Lord Brougham’s threat, though the bill passed by a narrow margin in the House of Lords, the charges against the Queen were dropped before it could be debated in the House of Commons. Accordingly, Lord Brougham successfully engaged in a classic case, and perhaps our earliest example, of what we now call graymail. That is, in the course of representing a criminal defendant, to induce the government to drop the charges, Lord Brougham had threatened to reveal information that is harmful or embarrassing to the government. Ultimately, as a result of this, Lord Brougham became known by his contemporaries as a great lawyer, but a bad citizen.

As an analogue to the story, the bill passed the House of Lords. But, due to heavy debate in the House of Commons and public unrest, it was withdrawn. Caroline’s victory was short lived. She was barred from the coronation and died three weeks after George was crowned. Rumors swirled that there was foul play at hand.

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One moral to this story could be that civility and effective advocacy are not mutually exclusive. It may be that there could have been other routes for Caroline to achieve victory without putting her country on the cusp of an uprising. Indeed, California courts have made clear that lawyers’ obligations are not, as Lord Brougham suggested, only to the client.

Of course, there is a special relationship that lawyers have with their clients. And it is important to be an advocate for clients’ rights. Sometimes, however, the way this balance between advocacy and civility is calibrated can lead some lawyers—especially those engaged in transactions—to fail to identify some conflicts.

It may be difficult to find a lawyer who does not recognize that a conflict exists if two current clients ask you to negotiate the same contract with the other. But it is not unheard of to find a lawyer who believes it is fine to memorialize an agreement in writing between two concurrent clients because they come into the deal agreeing in principle. That can theoretically be true, so long as the parties have already negotiated and agreed to every term in the agreement and are merely searching for a scrivener. The likelihood of that actually being the case is at least questionable.

California Rules of Professional Conduct, rule 1.7(a) provides, "A lawyer shall not, without informed written consent from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter." This, of course, raises the question of how there can be direct adversity when the parties to the contract already agree on what the terms should be. And that is where we circle back to what being an advocate means.

But even in "friendly" matters, direct adversity can be present. Adversity can be a difficult concept in some instances to identify and is not directly defined in California’s Rules of Professional Conduct. But there is some guidance in Restatement (Third) of Law: Conflicts of Interest, section 121 (2000):

‘Adverse’ effect relates to the quality of the representation, not necessarily the quality of the result obtained in a given case. The standard refers to the incentives faced by the lawyer before or during the representation because it often cannot be foretold what the actual result would have been if the representation had been conflict-free.

That concept feels particularly important in the context of transactional work. The nature of most contracts is that they are zero sum. To the extent that something benefits one client, even by posing a potential benefit, it generally does so at the expense of the other party to the contract, who has an additional risk. Even if the parties face similar risks and benefits, they are necessarily adverse to the other party. Moreover, it would be unusual for parties to have truly vetted all issues such that they are engaging a lawyer merely to be a scrivener to create an enforceable contract for themselves. Instead, it is customary for parties to ask their lawyers to include the "usual" terms of particular contracts, without a discussion of what those terms may be and how they impact each of the parties.

That said, it may be possible for lawyer to represent two concurrent clients with adversity in the same manner so long as they obtain consent after full disclosure and the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the concurrent representation is not otherwise prohibited by law.

Borrowing from New York City Bar Association Formal Opinion 2001-2, lawyers may want to consider several factors in assessing whether they can provide competent and diligent representation. How strong the conflict is relative to the overall representation would impact what the lawyer could realistically do. The more that the clients have as common interests, the more reasonable it would be to proceed; the more they have in dispute—and the importance of those issues to the representation—indicate against proceeding. Whether the duty of confidentiality could be implicated is also a significant factor. To the extent that information from representing one client may not be used against the other, the more likely it is that the lawyer should not proceed. Indeed, sometimes a conflict can be unwaivable simply because the duty of confidentiality precludes a lawyer from providing sufficient information about one of the attorney-client relationships. And, ultimately, the lawyer has to be able to represent each client with the same attention and advocacy as other clients would be represented.

The reality is that lawyers’ services do not exist in a vacuum. We learn about our clients’ needs and work to address them, which may be similar, but are very likely not identical from person to person or organization to organization. That means, in practice, when a client comes to a lawyer with a predetermined game plan, the lawyer often considers what the client requests and may oftentimes come up with suggestions about different and potentially better ways to achieve the client’s goals. There is a very real risk that such alternate approaches could negatively impact the other party to a transaction.

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All of this does not mean that lawyers have to constantly contemplate whether their representation of one client may indirectly impact another. Many times that is not the case and would not be "direct adversity" within the meaning of rule 1.7. An example of this may be found in comment [1], which provides that "representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing enterprises in unrelated litigation," is not a directly adverse representation and does not create a conflict. Accordingly, the representation of a company in the negotiation of a contract with a person in the supply chain is not directly adverse to a client that competes with that company, even though the contract may have an economic impact on the competitor.

Nonetheless, this concept of being able to advocate for your client, without conflicting obligations standing as an impediment, is something that continually needs to be monitored throughout a representation. It could be that you are called on to advise on the engagement of an entity that your client will use to advise them (perhaps a financial analyst or tax advisor) that your firm separately represents. Or a different party to the contract could be acquired by another organization that is a client. Accordingly, lawyers should constantly consider whether they should move forward on matters as new players and relationships are introduced.

All of this circles back to the concept we began with. Lawyers need to be advocates for their clients. But they also cannot bury their heads as to how their representation impacts others, including other clients they may have. A good advocate can freely counsel their client about all consequences of potential conduct or transactions. If they cannot, they should discuss that with their clients and, if necessary, decline to be involved in matters where the lawyer’s own conduct may be too restricted, even if the client would be willing to consent.

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Notes:

^*. David Majchrzak is a shareholder and deputy general counsel with Klinedinst PC. He co-chaired California Lawyers Association’s inaugural ethics committee and focuses his practice on representing lawyers and judges in risk management and disciplinary matters. The views expressed herein are his own.

^01. Henry Lord Brougham, The Life and Times of Henry Lord Brougham (1871).

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