Ethics Spotlight: Limits of Zealous Advocacy in California

February 2022

By Ashod Mooradian

Attorneys are first and foremost advocates for their clients’ causes. That is, California attorneys are called upon to be “zealous” advocates for their clients. The Supreme Court of California has affirmed this on several occasions stating that once a lawyer agrees to representation of a client, they must represent the client “zealously, within the bounds of the law.”[1] However, recent appellate court decisions have sought to temper the “zealousness” of advocacy with the equally important concepts of civility and cooperation:

We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.[2]

These courts recognize that California attorneys owe duties to their clients but also to the justice system itself.[3] Often, the demands of these two duties are not harmonious and can place attorneys in a position where they must choose between competing duties to each. While attorneys are expected to represent clients to the best of their ability and owe a duty to clients to present the case with vigor in a manner that is as favorable to the client as applicable law permits, an attorney is also an officer of the court and must work to maintain the integrity of the justice system through truthful advocacy in and outside the courtroom. How then can attorneys reliably determine the ethical limits of their advocacy?

The fundamental answer is that all advocacy—even zealous advocacy—must remain within the bounds of law. This article provides a brief overview of the ethical limits of zealous advocacy by examining two foundational duties included in Bus. & Prof. Code § 6068 and their related rules in the California Rules of Professional Conduct (“RPC”).

Bus. & Prof. Code § 6068 identifies several important duties to the justice system imposed on all California attorneys. In general, these duties require an attorney not only to consider their client’s directives and interests but also to undertake an independent ethical evaluation of their conduct or proposed course of action on behalf of a client to ensure it falls within the limits imposed on their advocacy by the applicable ethical laws and rules.

First, paragraph (a) of § 6068 provides that it is a duty of an attorney to “support the Constitution and laws of the United States and of this state.”[4] This is a foundational attorney duty that seeks to ensure that any conduct or advocacy by an attorney on behalf of a client does not contravene the Constitution and laws of the federal government or California. While § 6068(a) seems to merely be a straightforward duty to obey the law, there is much more in view. This is evident when one examines the related RPC.

Rule 1.2.1(a) and (b)(2) expands on the duty set forth in § 6068(a). It states that a lawyer “shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal” except that the lawyer may “counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law, rule or ruling of a tribunal.” By prohibiting a lawyers counseling or assisting a client in criminal, fraudulent or unlawful conduct, rule 1.2.1 emphasizes that an attorney’s advocacy must include independent considerations beyond the directives and goals of a client. Moreover, an attorney is not required to simply walk away from a client in such a situation but instead may assist the client to understand the valid scope, meaning and application of the law at issue. In fact, rule 1.2.1(b)(1) explicitly provides that a lawyer “may…discuss the legal consequences of any proposed course of conduct with the client.” That is, the attorney can guide a client away from errant objectives through a better understanding of the law as well as help the client find a remedy that will serve their interests through valid and good faith application of law. Put another way, an attorney is authorized to counsel a client “off the ethical ledge” if they appear to have a criminal or fraudulent objective.

However, in providing counseling, an attorney must walk a fine line. As pointed out in comment [1] of rule 1.2.1, there is a critical distinction between presenting an analysis of questionable conduct and recommending how a crime or fraud might be committed with impunity. Thus, harmonizing the needs of the client with the integrity of the justice system is realized when an attorney acts within the ethical limits of advocacy outlined by law and the RPC.

A second foundational duty is found in Bus. & Prof. Code § 6068(c) which provides it is a duty of an attorney “to counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just except the defense of a person charged with a public offense.”[5] Again, an attorney may not counsel a client to file a civil claim or action unless the attorney independently believes that claim or action is legal or just. An examination of the related RPC is helpful in fleshing out and understanding this duty.

Rule 3.1(a) prohibits an attorney from bringing or continuing an action, conducting a defense, asserting a position in litigation, or taking an appeal, “without probable cause and for the purpose of harassing or maliciously injuring any person”; or from presenting a claim or defense in litigation “that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.” Rule 3.1(a) adds considerations of probable cause, harassment or malicious injury, and good faith to help an attorney determine the ethical contours of advocacy on behalf of a client. By its reference to probable cause and good faith, rule 3.1 reminds attorneys that they must always consider their duties to the justice system as well as their obligations to a client. Moreover, by its reference to harassment and malicious injury, rule 3.1 emphasizes the importance of attorneys conforming their conduct with opposing parties and counsel within certain ethical limitations.[6]

We have all experienced instances where the tension between duties to the justice system and to clients have been difficult to resolve. Attorneys, however, are duty-bound to undertake an appropriate analysis to determine for their clients and themselves the ethical limits of their zealous advocacy in any given case. Bus. & Prof. Code § 6068(a) and (c) and the related rules discussed in this article provide guidance to assist attorneys in finding their way through difficult ethical decisions faced in the practice of law. The ethical restraint on unbridled advocacy also has the salubrious effect of making attorneys better advocates for their clients because it encourages creative thinking and “out-of-the-box” analysis that otherwise might be overlooked. It is important to remember that just because something can be done, it does not follow that it should. This is the basic truth of ethical zealous advocacy that all California attorneys are duty-bound to heed in their advocacy on behalf of their clients and as officers of the court.

1. See, e.g., Hawk v. Sup.Ct. (People) (1974) 42 Cal.App.3d 108, 126.
2. In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.
3. See Rule of Professional Conduct, rule 1.0(a).
4. See also Bus. & Prof. Code § 6067, which sets for the attorney’s oath “to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.”
5. The ethical limits in a criminal proceeding (or a proceeding that could result in incarceration, or involuntary commitment or confinement) are beyond the scope of this article and differ in important ways from the civil context. For instance, RPC rule 3.1(b) provides a lawyer for the defendant may defend the proceeding by requiring that every element of the case be established. This is not true in civil actions as discussed herein.
6. Attorneys would be well-served to remember that civility, courtesy, and cooperation with opposing parties and their counsel will not diminish the effectiveness of their ethical zealous advocacy.

Mooradian is a member of the Ethics Committee of the California Lawyers Association. He was a prosecutor with the State Bar of California, Office of Chief Trial Counsel for nearly 10 years. In private practice since 2017, he now exclusively practices legal ethics, professional responsibility, and state bar matter representation. The views expressed herein are his own.