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.
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