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?