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Lawrence J. Vilardo is a partner with Connors & Vilardo LLP, in Buffalo, New York, and a former editor-in-chief of Litigation.
Vincent E. Doyle III is a partner with Connors & Vilardo LLP and president of the New York State Bar Association.
When we were in law school, when we studied for the bar exam, and when we began practicing law, we learned that in carrying out our duties as advocates, we were obligated to represent our clients with zeal. The Canons of Ethics that bound us as New York lawyers explicitly required exactly that. In fact, you could find those very words in the Disciplinary Rules and Ethical Considerations that charged us with our professional responsibilities.
Because we are litigators, being zealous advocates was particularly important to us. We understood that we spoke for those who retained us to speak for them because they were ill-equipped to speak for themselves. Some were defendants facing incarceration in criminal cases. Some were doctors fighting allegations of medical malpractice. Some were profoundly injured plaintiffs looking for a way to cope with an uncertain future. And some were corporations involved in what to members of the general public might seem like less interesting—and less compelling—business disputes. But we owed them all that same duty of warm zeal: the duty to put ourselves in their shoes and to do everything we ethically could do to achieve the best result for them.
Try to find “warm zeal” or “zealous” or “zeal” in your ethical rules. You probably won’t. Those words have disappeared from the Model Rules, from the rules governing New York lawyers (and now even their preamble), and from the ethical rules governing most lawyers across the nation. Where did they go? Why are they gone? Will they ever come back? Those questions are weighty ones. But before we get there, we should look at where they came from in the first place, and that story begins with a 19th-century debate between opposing camps separated by an ocean.
Lord Henry Brougham was a Brit to the manner born. He was a member of the House of Lords, holding the title of baron and serving as Lord High Chancellor of Great Britain. To say that he was a man of privilege would be an understatement; he was the very epitome of the British upper class.
David Hoffman, on the other hand, had to work to become what he was. He was a Baltimore lawyer who did not attend law school; instead, he apprenticed and worked his way into the profession. He then became one of the few law professors in the United States. Some credit him with virtually inventing the law school curriculum most used in the United States. He is what we Americans proudly call a self-made man.
The fact that Brougham was raised to the peerage while Hoffman had to work to achieve his status does not mean that they were of unequal talent. In fact, both men were brilliant. Both men were cut from the finest cloth as far as morals and ethics were concerned. And both men disagreed fundamentally about a lawyer’s ethical duty to his client.
Brougham evidenced his brilliance at a very young age. His first interests were science and math, and he was elected to the prestigious Royal Society at the extraordinarily young age of 25. By comparison, Sir Isaac Newton was not elected to the society until the ripe old age of 30. Brougham was expert in literature, poetry, and medicine, but his vocation became the law.
He was what we today would call an independent and progressive thinker. He crusaded against slavery and for the rights of workers. He pursued equal rights for women. And he worked for all those objectives both through law and through politics.
But Brougham is perhaps most famous for representing Caroline, the Princess of Wales.
Caroline, a German princess, married George, the Prince of Wales. It was a political marriage, pure and simple. Caroline was said to lack decorum and to speak her mind too readily. George led an extravagant lifestyle, was obese, and often was intoxicated. But England needed to solidify Germany as an ally, and George needed to find a way out of debt. So, they married. And then they separated after one year. Caroline eventually moved to the continent. Years later, when George’s father died and George was to become king, Caroline returned and demanded to attend the coronation as queen.
George and Caroline were not divorced, and so Caroline had a point. At the time, the only viable ground for divorce was adultery, but Caroline protested her innocence. The House of Lords nevertheless charged Caroline with adultery, and Brougham was retained to defend she-who-would-be-queen. The trial began, in the House of Lords, in 1820.
This was indeed the trial of the century. It had everything—from allegations of tawdry sex to embarrassing anecdotes about royalty. There were stories of witnesses fainting; there was a public petition supporting Caroline signed by millions. The leadership of a nation was at stake.
Enter Brougham. His duty, as he saw it, had nothing to do with the king or the nation or the legal system. His duty had a single-minded focus. And he spoke of that duty in his opening statement, described by the commentators of the time as “one of the most powerful orations that ever proceeded from human lips”:
An advocate by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means—to protect that client at all hazards and costs to all others, and among others to himself—is the highest and most unquestioned of his duties; and he must not regard the alarm—the suffering—the torment—the destruction—which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection!
Speeches of Henry Lord Brougham (A. and C. Black, 1838).
For Brougham, the choice was a simple one. His profession compelled him to choose the interests of his client above those of even his country. And he demonstrated just how sacred that duty was to him with more than just his words.
Brougham had a trick up his sleeve. He knew that there were rumblings that as a young man, George had married secretly—a Catholic bride, no less—and had actually lived with his first wife before his marriage to Caroline. In other words, George himself may have been guilty of adultery or worse. And there was evidence that he had committed other adulteries as well.
Presenting such evidence at trial might throw the country into a national crisis, but Brougham refused to pull any punches. He made it clear that he would not shrink from his duty to his client.
Counsel for the government had little choice. The adultery charges against Caroline were withdrawn. She indeed would be queen.
Caroline’s victory was short-lived, however. She was barred from the king’s coronation by soldiers with bayonets at the door. Attended by a servant of one of the king’s supporters, she fell ill that very night. Three weeks later, she died. At first, the government refused to allow her funeral procession to travel through London; after riots broke out, the government relented. Her epitaph reads: “Here lies Caroline, the Injured Queen of England.”
Brougham is not remembered fondly in British history books, many of which did not waver in their loyalty to the crown. Even his clarion call for zealous advocacy has been roundly criticized and rejected in England. But his brilliant oration had a more lasting effect across the pond. In the United States, at least, Brougham’s opening statement inspired the view that attorneys were duty-bound to advance their client’s interests through any and all legal means—that is, to represent their clients with zeal.
A decade and a half after Brougham’s defense of Queen Caroline, David Hoffman would challenge that position. Hoffman was the 11th of 12 children born to a Baltimore family, and he was the only one not to go into the family business. His passion was the law. But there were few law schools then, so he taught himself by serving as an apprentice to a lawyer, and he was called to the bar as a result of that hard work.
A successful lawyer with impeccable integrity, Hoffman was convinced that the philosophy and history of law needed to be taught and studied by lawyers-in-training, and so he designed one of the first law school curricula and began teaching law at the University of Maryland. Eventually, Hoffman set aside an ever-increasing share of his professional time to develop his curriculum for the study of law, which became a model for law schools across the country.
But Hoffman was interested in more than substantive legal education. Indeed, he was perhaps most concerned about the imposition of ethical standards on the practice of law. In his view, legal questions ultimately resolve themselves through moral principles. In fact, he believed that those moral principles provided clearly objective answers to the legal questions.
And so, about 15 years after Brougham’s stirring opening statement in Queen Caroline’s case, Hoffman published his 50 Resolutions in Regard to Professional Deportment, a book that has been called America’s first code of legal ethics.
Hoffman’s resolutions are remarkable for their contention that the lawyer’s own conscience comes first, even before his duty to his clients: “I am resolved to make my own—and not the conscience of others—my sole guide.” The lawyer’s ethical duty is therefore no different from his moral duty: “What is morally wrong cannot be professionally right; however, it may be sanctioned by time or custom.” It is the lawyer, not the client, who decides whether a claim or defense is worthy of pursuit: “If, after duly examining a case, I am persuaded that my client’s claim, or defense (as the case may be), cannot, or rather ought not, be sustained, I will promptly advise him to abandon it.” And another resolution forbade lawyers from using their persuasive powers to mislead jurors into accepting unsound arguments.
Needless to say, Hoffman had a real problem with Brougham’s single-minded devotion to zealous advocacy. In Hoffman’s view, a lawyer’s conscience restrained what the lawyer could and should do for a client. Rather than focusing solely on the client, the lawyer should factor in what his conscience says is the moral path toward the greater good. In fact, Hoffman took on Brougham’s concept of zeal explicitly in his very first resolution: “I will never permit professional zeal to carry me beyond the limits of sobriety and decorum.”
The debate between the positions articulated by Brougham and Hoffman raged for nearly two centuries, and it still rages today. Legal ethicists choose sides and argue the Brougham and Hoffman positions with great zeal. Respected law professors who disagree fundamentally nevertheless contribute insightful discussions on the topic. See, e.g., Zacharis & Green, “Reconceptualizing Advocacy Ethics,” 74 Geo. Wash. L. Rev. 1 (2005); Freedman, “Henry Lord Brougham and Zeal,” 34 Hofstra L. Rev. 1319 (2006).
At first, Brougham’s position won the day in the United States and was the standard in our rules of ethics. The American Bar Association’s first code of ethics was published in 1908. Those Canons of Professional Ethics included the admonition that “a lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability” (emphasis added). Sixty years later, in 1969, the ABA drafted the Model Code of Professional Responsibility. That version of the ethical rules retained the word “zeal” with a slight—and self-evident—qualification: “A lawyer should represent a client zealously within the bounds of the law.” Id., Canon 7 (emphasis added). Then, in 1983, the ABA rewrote the ethical rules again, publishing the Model Rules of Professional Conduct. The z word remained, but only as a descriptive term in the preamble and commentary. It had disappeared from the rules themselves.
In New York, where we practice, “zeal” remained in the rules until 2009, when New York finally adopted, with several modifications, the ABA’s Model Rules of Professional Conduct. But when New York adopted the Model Rules, it dropped “zeal” altogether—even from the preamble. And New York is not the only state where it has disappeared entirely.
The demise and disappearance of “zeal” from our ethical rules is more than a matter of semantics. In fact, it is evidence of a fundamental paradigm shift that is and has been occurring in our legal system. Perhaps sensitive to criticism that they are nothing more than hired guns who represent guilty clients at any cost, lawyers have gradually migrated toward the position that they have a duty to the “truth” or the “system” that takes precedence over their duty to represent their clients with zeal.
The evidence of that migration can be found in far more than the simple disappearance of the word “zeal.” Not so long ago, lawyers were absolutely precluded from disclosing confidential client communications. Now the rules are not so black-and-white; there are times when the ethical rules allow such disclosure or even require it. In New York, for example, under the old rules, a lawyer who concluded that his client had engaged in fraudulent conduct before a tribunal could not report this fact to the tribunal if doing so required breaking a client confidence. The new rules removed the prohibition and replaced it with a mandate: Under some circumstances, the lawyer now must take remedial measures, including breaking the confidence, if necessary.
Overall, the rules have become more focused on compelling the lawyer to be an agent of the legal system and less focused on encouraging and protecting the lawyer’s single-minded pursuit of the client’s cause. When a lawyer acts as a counselor, giving learned advice to guide a client’s future conduct, such a shift causes relatively little disruption. Advice like that should be considered and dispassionate; it should be delivered in the context of the client’s place in society. Indeed, the client expects to be advised on all the consequences and ramifications of potential courses of action and thus wants the lawyer to consider other interests, such as the interests of those affected by the proposed conduct or the interests of society in general.
But an attorney acting as an advocate plays a far different role, one that is far more disrupted by the shift away from ethical norms encouraging professional zeal. And so, at least for attorneys acting as advocates, the disappearance of zeal is a shame for a few reasons.
First, and most fundamentally, our adversary system is based on the notion that justice results when two sides, represented zealously by lawyers of their choosing, present the evidence and arguments from opposing perspectives and a judge or jury decides between them. As lawyers, we are not the judges of our clients’ cases. Instead, we are charged with the responsibility of speaking for clients who cannot speak for themselves and representing the interests of those clients with all the skill and passion we would use if those interests were our own. The advocate puts himself in the client’s shoes and takes on the client’s problems. In the words of Brougham, the lawyer “knows . . . but one person in the world, that client and none other.”
Of course, even then, lawyers cannot knowingly present false evidence, counsel their clients to lie, or even permit witnesses to testify to something that the lawyer knows is simply not true. But doubts are resolved in the client’s favor, and the lawyer takes his client’s genuine perspective of the facts and tries to persuade the fact finder to accept that perspective and the judge to accept the legal position that flows from it.
When lawyers start to put their duty to the “system” before their duty to their clients, the adversary system falls apart. Charging the lawyers for both sides to honestly pursue “justice” and the “truth” sounds like a noble concept, but how does that really work? Like beauty, “truth” is often in the eye of the beholder. My client swears and honestly believes that the light was green; yours just as honestly and vehemently insists that it was red. I am not sure, but I have a suspicion that your client may be correct. Should you and I get together and decide to present the facts in a way that will result in your client’s victory? Not if my duty is to represent my client with single-minded zeal. But if my duty is something less—if my duty is to my conscience, or to what I think is the “truth,” or to the “system”—perhaps so.
Allowing a duty to the “system” to temper a lawyer’s duty to represent a client with warm zeal also creates confusion for lawyers. If, despite my admonition to tell the truth, my client tells me an implausible tale that I think probably is false, what am I to do? Brougham would say that my duty is to make my client’s story as plausible as possible and to argue as best I can that my client should win: As long as I do not cross the line that separates what I know to be false, I meet my ethical responsibility. But if I also have a duty to the “system,” what is my charge? Do I tell my client to find another lawyer, one whom the client can convince that his or her story is true? Or, stated another way, are clients limited to finding lawyers who believe in their cases and the “truth” of their stories? In criminal cases, does that mean that guilty defendants no longer can require the government to prove their guilt beyond a reasonable doubt? And if that is so, then what does that say about our adversary system?
How will all this affect the sacred relationship between attorney and client? As already noted, attorneys now are sometimes required to disclose client confidences. One need not be blessed with the brilliance of Lord Brougham or David Hoffman to figure out that such a rule will make clients less willing to share the truth with their attorneys. That, in turn, will make the attorneys less able to represent their clients effectively.
Perhaps it is ironic that an increased emphasis on a lawyer’s duty to the “system” effectively undermines that very system. And perhaps tinkering with our ethical rules by removing “zeal,” among other things, is not as ominous as we make it sound. But a system that is by its very nature an “adversary” system requires adversaries. In our view, that means lawyers devoted to pursue not the greater good, not what is best for the “system,” not even “justice,” but rather only the client’s cause. At the very foundation of our system is the belief that justice, in fact, results from exactly that.
The pendulum has swung. The zeal is gone. But we hope not for long.