ABA Center for Professional Liability The Center for Professional Responsibility promotes the public interest by promoting and promoting high ethical behavior and professionalism of lawyers and judges. The Centre provides advice and guidance to the legal profession and the judiciary by developing, interpreting and promoting the implementation of policies and standards governing the conduct and regulation of lawyers and judges, including examining the challenges and opportunities of today`s global legal environment and producing academic and other resources. Lawyers have an obligation to diligently defend all clients, not just the innocent. The ABA`s Model Rules of Professional Conduct takes a decidedly different view. There are no rules that require zealous representation. Instead, the emphasis is on competent and conscientious representation. The term “zeal” appears in the Preamble, both in relation to disputes2 and in the Note to Model Rule 1.3. The rule itself requires a lawyer to act with reasonable care and speed when representing a client. Commentary (1) states that “(a) the lawyer must also act with commitment and dedication to the interests of the client and with zeal in representing the client`s interests”. At the same time, this proposal is watered down by the following sentence: “However, a lawyer is not obliged to push for all the benefits that could be realized for a client.” For an analysis of the historical origins of the concept of zeal in the standards of professional conduct of lawyers, see Lawrence J. Vilardo, Vincent E.
Doyle III,. Where has the zeal gone? Litigation, Volume 38, Number 1, Fall 2011. According to the model rules as they exist today, the âzeal and its derivatives appear four times, all in provisions outside the current rules. In other words, there is no actual model rule that requires the “zealous” representation of a client. Lawyers get into trouble with clients and ethics authorities when they take on a case they can`t handle, whether it`s because of their education, experience, or when the volume of work is simply too much for one person. In most cases, the skills lawyers learn in school and at work are of general application – they assess a problem, research the law, and apply the facts of a case to the law they discovered. For all the reasons set out in this article, the ABA should replace all forms of the word “zeal” when they appear in the preamble to the Model Rules and in the commentary to Model Rule 1.3 with “diligent” and “diligence”. These amendments reconcile the conflict between the requirements of the Model Rules and the provisions referred to in the preamble and commentary, and eliminate an excuse often used for uncivilized and unethical conduct by lawyers. Replacing “zeal” with “diligence” promotes politeness in legal practice. It will also maintain the urgency of increased advocacy while avoiding the risk of lawyers misinterpreting their obligations and behaving less professionally.
For example, some GPs have experience in complex corporate securities transactions and are favourites for companies that want to make ends meet without having to pay big city bills. However, in most cases, a large company will look for a large law firm that has the resources to handle monstrous disputes. An individual practitioner who has no experience in a case that requires the review of millions of documents, and who has never led a large team of lawyers, should probably refer such a case to an experienced law firm. A lawyer does not need to identify themselves or even agree with a client`s goals to be a zealous lawyer. The lawyer-client relationship is an agency in which two different and independent people have a common interest. Just as an agent is not required to do everything a client needs, the role of the agent does not conflict with the role of the consultant. Too much identification with the client can lead the lawyer to be a fanatic instead of enthusiastic. In fact, the professional ideal is a lawyer who fundamentally disagrees with the client, but who can still offer independent advice and pursue the client`s goals with zeal, care, and a certain level of passion for the cause. At the other end of the spectrum is the lawyer who rejects the client`s goals, whose personal dislike for the client or the client`s goals leads the lawyer to act half-heartedly. The prosecution must meet the burden of proving guilt beyond a reasonable doubt. Sometimes his trial fails if he does not live up to this burden, even if it seems more likely that the accused committed the crime. Issues such as the admissibility of evidence or the credibility of witnesses may play a role in the prosecution`s ability to reach a conviction.
This is called the difference between factual fault and legal liability. In Fla. Bar v. Diaco, 2016 BL 23619, Florida, No. SC14-1052, 28.01.16, unreported, lawyer Diaco was permanently banned after planning an Eloborat plan to have the opposing party`s lawyers arrested for drunk driving. In this case, the plaintiff`s lawyers conspired with their paralegal to flirt with the opposing lawyer, encourage him to drink too much, and then go home while alerting the police to arrest him for driving under the influence of alcohol. In litigation, clients are litigants, and although bad feelings may exist between clients, these bad feelings should not influence a lawyer`s conduct, attitude and behaviour towards opposing lawyers. A lawyer should not refer unfairly or derogably to the opposing lawyer. Harassment and abuse tactics by lawyers disrupt the proper administration of justice and have no place in our legal system.
2. “As a lawyer, a lawyer eagerly asserts the client`s position” Preamble cmt. (2). “If a counterparty is well represented, a lawyer may be a zealous advocate on behalf of a client and at the same time assume that justice will be done.” Preamble cmt. (8). The problem with these statements in the preamble is that they can reasonably be interpreted as requiring a comprehensive, uncompromising, and resolved pursuit of the client`s objectives – which is not what the Model Rules themselves require. In some cases, the type of aggressive advocacy suggested by the use of the word “zealous” in these sentences may actually constitute a violation of ethical obligations imposed by other model rules, such as: Model Rule 3.4, which requires fairness to counsel and opposing parties, and Model Rule 4.4, which sets out a lawyer`s duty to respect the rights of third parties.