Canadian lawyers have a legal duty of resolute or zealous advocacy. Law society codes of conduct direct lawyers to represent clients “resolutely and honourably” (FLS Model Code, Rule 5.1-1). The Supreme Court of Canada says that a core aspect of a lawyer’s duty of loyalty is the “duty of commitment to the client’s cause (sometimes referred to as ‘zealous representation’)” (R v Neil 2002 SCC 70 at para. 19).
Not everyone likes those duties. They worry that they implicitly endorse lawyer aggression. They think duties of honour and integrity, and as an officer of the court, ought to govern lawyer representation of clients. At minimum, Canadian lawyer’s advocacy should only be resolute, not zealous. I want to raise a different objection. Specifically, that zealous (or resolute) advocacy focuses on the wrong thing. It focuses not on what a lawyer does or accomplishes, but rather on what the lawyer feels, on her state of mind in relation to the client’s cause. That sort of focus is a mistake.
Consider a hypothetical lawyer, “Jack”. Jack works as a senior associate in a large law firm representing corporate clients in litigation. Jack loves to travel and likes nice things, and values the large firm salary that supports both. He enjoys the people he works with at the firm, and respects their intelligence and professionalism. He views his clients’ cases with indifference at best (it’s just money, after all), but a desire to keep his well-paid job and to be perceived by colleagues as competent, makes him careful in his research and writing, and diligent in his preparation for discoveries and trial. He is a careful and well-prepared examiner of witnesses and presenter of argument, even if no one is going to confuse him for Perry Mason. Both partners and corporate clients enjoy working with him; his performance reviews have been excellent.
Or consider “Jane”, a criminal defence lawyer. Jane became a criminal defence lawyer because her defence lawyer father offered her articles. Once she completed them, she stayed because no other work seemed better, and she doubted her ability to learn and succeed elsewhere. Jane does not feel the ardent commitment that some of her colleagues do to the rights of a criminal accused. She doesn’t oppose them obviously, but they do not motivate her. Jane instead goes to work every day, seven days a week, driven there by persistent low-grade anxiety and depression, and intense self-doubt. She carefully reviews all Crown disclosure, investigates her client’s cases and prepares thoroughly for every court appearance. She takes little pleasure in acquittals, although worries that client convictions reflect her own fundamental inadequacies. After 10 years, Jane has plenty of work and respect in the criminal bar, although taking no particular enjoyment from it. She daydreams about being a dog walker.
Can Jack or Jane be described as “zealous” or “resolute” advocates? The Oxford English Reference Dictionary 2d Ed (1996) defines zeal as “earnestness or fervor in advancing a cause or rendering a service” (with zealous defined as “full of zeal”). It defines resolute as “firm of purpose; not vacillating”. Certainly both Jack and Jane work hard. They provide competent representation. But it’s hard to characterize Jack’s indifferent instrumentalism or Jane’s quiet desperation as either zealous or resolute. Neither cares much for their clients’ causes, and nor can their work in pursuit of their clients’ interests be described as having fervor or even firmness of purpose.
But from my point of view – and I’m guessing from their clients – both Jack and Jane are ethical lawyers. They competently do the work necessary to advance their client’s interests, and whether they do so enthusiastically, indifferently or sadly really doesn’t matter very much from an ethical point of view. Lawyers’ ethics are about acting as required by their role and professionalism, not personal belief or commitment. In short, we have good reason to care about lawyer outputs (the work they do) but not much reason to care about lawyer inputs (their own attitude or beliefs about the work they do). Adding “zealous” or “resolute” to a lawyer’s duty of advocacy puts the focus on the wrong thing.
Some might suggest that even if Jack and Jane can’t be considered zealous, they can be considered resolute – that zeal connotes a commitment to the client’s cause that resolution does not, and that however indifferently or sadly, Jack and Jill do have some firmness of purpose in their advocacy. I would argue, however, that “resolute” similarly focuses on the attitude of the lawyer to the work, rather than on the work the lawyer actually does, such that even if Jack and Jane might satisfy the standard of resolute advocacy (and I don’t really think they do) that is still beside the point.
The reason we add “zealous” and “resolute” as qualifiers to lawyer advocacy is, I think, as a proxy for the duty of competent representation; we believe that the zealous or resolute lawyer is the lawyer most likely to be competent and effective in representing the client. We worry that the indifferently instrumental or the quietly desperate are just not as likely to do what the client needs. To my mind, however, ethical duties should be defined by what they require of us, not by the quality we think most likely to result in their accomplishment. Lawyers ought to be competent and effective in pursuit of their clients’ interests and whether that competence is motivated by zeal, resolution or something else altogether doesn’t much matter. A lawyer does not need to think that the client’s case is righteous or deserving of victory. The lawyer’s only obligation is to assess the case’s legal merits, and to develop a strategy to pursue that case consistent with its merits.
As a concluding sidebar, part of my motivation to write this column was a position taken by Leonid Sirota on Twitter in relation to the Law Society of Ontario’s Statement of Principles requirement. In response to my position that the Statement does not require lawyers to believe in equality or diversity, but only to identify actions they can take to advance equality and diversity, Professor Sirota responded “can you tell me what promoting something without believing in it or at least giving the impression that you do looks like?” He further suggested that “‘Doing equality generating things’ without believing that equality is good is still acting against your conscience, and it still is misleading others into thinking you believe something you don’t”.
This objection genuinely surprised me in relation to lawyer’s ethics. It was a point I had never seriously considered, and it immediately struck me as seriously off base. But I needed to unpack why. This blog is my explanation. In representing clients a lawyer must from time to time act with commitment in pursuit of things that he neither believes in nor cares about. That is what lawyers do – it is the essence of their work. Now Professor Sirota might respond that it is different to do something for yourself instead of a client – the possibility of beliefs being improperly attributed to you is greater. My response to that is that the Statement of Principles is not about lawyers doing things on their own behalf, but rather on the profession’s. I hope that most lawyers do believe in equality and diversity, and in particular in how those values are instantiated in law. But if they don’t, I nonetheless see no regulatory impropriety in requiring them to act as if they do to pursue the profession’s objectives. Acting in pursuit of legal objectives, whether or not you believe in them, is a fundamental requirement of the lawyer’s job.