The 1908 ABA Canons of Professional Ethics required lawyers to pursue their client’s objectives with “warm zeal,” whatever that meant. These days, practicing attorneys and scholars routinely throw around the term “zealous advocacy” to describe a lawyer’s duties to their client, but “zealous advocacy” is not actually required. As Sylvia E. Stevens of the Oregon Bar noted almost a decade ago:
No [ABA Model] rule requires zealous representation. Rather, the emphasis is on competent and diligent representation. The term “zeal” appears in the preamble, both times in reference to litigation, and in the comment to Model Rule 1.3. The rule itself requires that a lawyer act with reasonable diligence and promptness in representing a client. Comment (1) explains that “(a) lawyer must also act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.” That suggestion is at the same time diluted by the next sentence: “A lawyer is not bound, however, to press for every advantage that might be realized for a client.”
The focus of the Rules, then, is on competence, diligence, and communication, not on the degree of “zeal” felt or exercised by the lawyer.
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. The phrase “discretion is the better part of valor” is now commonly used to indicate the wisdom of proceeding with caution, despite it being originally used for comedic effect (as “the better part of valour is discretion,” so “discretion” is the punch line) by a coward.
Truth is, for all the fear that the law will be “commoditized” like fast food, most legal work still involves a skilled professional making a judgment call. If it was something that didn’t require a judgment call, you wouldn’t need or ask a lawyer to do it.
So if lawyers aren’t required to engage in “zealous advocacy,” nor “to press for every advantage that might be realized for a client,” then where 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)?
The issue came up recently by way of a recent column in the Wall Street Journal about sexual assault investigations on college campuses, which sparked a variety of reactions on legal blogs. Putting aside the merits of the campus sexual assault issue (for what it’s worth, I lean this way), the issue of what arguments a lawyer must be willing to make came up in Mark Bennett’s critique of Charlie Thomas’ post. At the risk of giving short shrift to both of them, in sum, Thomas noted that, even though he represents defendants accused of sex crimes, he would never resort to “slut-shaming or victim-blaming,” which Bennett says is an undue limitation on Thomas’ obligations to his clients.
I had a back and forth with Bennett about these issues (here then here), one that I wanted to expand on a little bit in this post.
Let’s start with an important basic premise: a lawyer is not required to believe in the alleged facts that support their client’s position. For example, a criminal-defense lawyer does not need to believe in their client’s total innocence to present a zealous defense on all charges. Such a requirement would frustrate our adversarial system by forcing lawyers into the position of serving as judges and factfinders when they’re supposed to be serving as advocates. Rules 3.3 (“Candor Toward the Tribunal”) and 4.1 (“Truthfulness in Statements to Others”) only prohibit a knowingly false statement by a lawyer, and an attorney only “knows” a client’s story or evidence to be untrue if there is a “firm factual basis” for that knowledge. See People v. Calhoun, 351 Ill.App.3d 1072, 1056-86, 815 N.E.2d 492, 502-03 (Ill. App. 4th Dist. 2004) (surveying jurisdictions and finding most follow “firm factual basis” standard).
But that only tells us that a lawyer is not prohibited from making an argument they don’t believe in — when is a lawyer required to go forward with such an argument?
As noted above, the comments to the Model Rules say “[a] lawyer is not bound, however, to press for every advantage that might be realized for a client,” and there’s no requirement for the utmost zeal in representation, so we know that there’s no absolute duty to make a particular argument just because it might confer some advantage on the client.
Rule 1.4, however, which relates to communication with the client, includes a comment that says:
In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).
There are two salient points to pull out of there. 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.
But those points frankly don’t give us much guidance at all. In the absence of any further guidance, some courts have developed precedent holding that an attorney has “implied authority regarding ‘procedural’ matters, but a client retains the right to make ultimate decisions affecting the client’s ‘essential,’ or ‘substantive’ rights. But there is no bright-line test to distinguish between procedural and substantive issues.” See this article, citing Blanton v. Womancare, Inc., 38 Cal. 3d 396, 403–405 (1985).
The federal courts, in turn, churn out thousands of opinions deciding whether criminal-defense counsel gave ‘ineffective assistance’ by failing to raise a particular issue, in which scenario the “court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984). The attorney is typically found to have not been ineffective (the double negative is intentional), but not always. See, e.g., United States v. Midgett, 342 F.3d 321 (4th Cir. 2003) (while client’s story was “far-fetched” and contrary to other witnesses’ testimony, he consistently maintained to attorney it was true; defense counsel found ineffective for refusing to present it).
Which leaves us where, exactly? Without trying to comment on what does, and does not, constitute ineffective assistance of counsel — about which whole books have been written — the reasoning of Strickland, with its focus on “what might be considered sound trial strategy,” is quite compelling as a matter of professional responsibility, even if perhaps not as a matter of constitutional rights.
Trial advocacy is nowhere near a science. It’s hard to even call it an art given the absence of any focused study, education, and development beyond a program here or there. The practice of rhetoric goes back as far as recorded human history, and several thousand years later even lawyers practicing in the same field, with the same goals, looking at the same facts, rarely agree on how to approach a case.
The good news is that, under the current rules, our profession gives us wide latitude to use the approaches that we find best — and which we are the best capable of presenting — so long as the “general strategy” is communicated to the client.