Column

Against a Lawyer’s Duty to Be “Zealous” or “Resolute”

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.

Comments

  1. Professor Wooley, thank you for your blog on this topic. I have spent a lot of time this year teaching the concepts of “zealous” and “resolute” advocacy as well as opposing the LSO Statement of Principles. I did not connect the two until now. All of my colleagues, who like me, oppose the SOP, routinely represent people, interests or causes we dislike, disbelieve or even oppose. I hope many of them will rethink the issue as your column has forced me to. After all, we are lawyers and not politicians: We are open to changing our opinion after consideration of a different point of view.

  2. Here is a very recent case illustrating how ” resolute or zealous advocacy” in the name of protecting a client’s cause can go completely off the rails and cause all manner of harm.

    https://www.canlii.org/en/on/onca/doc/2018/2018onca247/2018onca247.html

    2018-03-14 Ferreira v. St. Mary’s General Hospital, 2018 ONCA 247 (CanLII)

    [24] The costs decision directly engages the propriety of Ms. Masgras’ conduct throughout this entire proceeding. Ms. Masgras submits that she was entitled to take the steps that she did in obtaining the interim injunction, and then opposing the motion to set aside that order, and indeed then bringing an appeal, on the basis that she was obliged as Mr. Ferreira’s personal injury lawyer in a separate matter, to protect his interests and further “his cause”.

  3. Very insightful and interesting article. From my perspective it also should be noted that not all cases and situations require “resolute” or “zealous” representation.When they do, the rule protects the lawyer against unfounded allegations of incivilty or bad faith. The adjectives do not speak to any personal belief or emotion personal to the lawyer, but rather qualify the extent of the actions of the lawyer–the representation of the client. To this extent I disagree with the crux of the premise. I have, many times, “resolutely” and “zealously”, and successfully, represented a client’s case with an internal, Bhuddist calm and no emotional investment or belief whatsoever. It was simply the tenacity and persistence of advancing the client’s interests and rights that were resolute,because of the high stakes to the client and his liberty,nothing else. In other words, the Rule simply requires and allows the lawyer to “go to the wall” for the client in his/her representation,when necessary, nothing else…

  4. Dear Darryl,

    Your comment made my day. There is nothing better than having one’s work treated seriously and thoughtfully, and nothing more reassuring than proof that we still live in a world where conclusions can be amended as a result of debate and analysis

    Alice

  5. Alice,

    I agree with your interpretation of the concepts of “zealous” or “resolute”, clearly they have be understood in relation to the lawyer’s actions, rather than in respect of their beliefs or attitudes.

    But, let me turn that argument around with respect to the statement of principles and the supposed duty to “promote equality, diversity and inclusion generally” (I won’t repeat my argument that no such obligation in fact exists, you’ve heard it before). If a lawyer’s compliance with his or her ethical obligations is defined by his or her actions, what are the actions, then, that this purported duty requires of us? What is the content of our supposed duty to “promote equality, diversity and inclusion generally”? I’d suggest to you that, at this point, that is unknowable.

    Clearly, discriminating against employees or clients, in contravention of our existing duty (under the Ontario Rules) not to discriminate (and Ontario Human Rights law) would run afoul of that obligation, but then, we already have an explicit (and distinct) obligation which addresses such conduct. Moreover, not all discrimination violates Ontario human rights law (or, since the duty is defined by reference to Ontario human rights law, the rules of professional conduct) – it contains numerous carve outs (similar to those which apply to TWU under BC law) which might affect lawyers.

    It would be legal, I suggest, under section 18 of the Ontario Human Rights Code for a lawyer working in legal aid clinic established to serve African Canadians to refuse to provide services to a white potential client (I certainly hope it would be legal, since Legal Aid Ontario funds such a clinic). But is doing so consistent with the obligation to promote equality, diversity and inclusion? I can see argument that it should be, but I couldn’t tell you that with any certainty that it is, and I have no trouble imagining arguments, depending on one’s conception of “equality” (discussed below) that it is not. Similarly, I suggest that under section 24 of the Ontario Human Rights Code, it would be legal for an in-house lawyer working for the Archdiocese of Toronto, when hiring a junior lawyer, to insist that such lawyer be a practicing Catholic (such a requirement is probably both reasonable and bona fide in that context). But is doing so now inconsistent with their duty to promote equality, diversity and inclusion? Who knows.

    Moreover, it is clear (and the legal opinion obtained by the LSUC states this explicitly) that the duty to promote equality goes well beyond non-discrimination. Unfortunately, because this is a duty which (if it actually exists) has not been defined anywhere, which is not set out in the Rules, and is not discussed at all in the Commentary to the Rules, does not seem to be bound in a meaningful way. I mean, if one accepts that you have a general duty to promote equality, can you ethically vote for tax cuts for the rich or a reduction in minimum wage rates (which might predictably increase one form of inequality)? Can one take a position against immigration, or is that inconsistent with my positive obligation to promote diversity and inclusion? If I choose to market my business to a particular ethnic community, is that inconsistent with promoting inclusion and diversity? I don’t know because the obligation isn’t defined anywhere.

    Indeed, the purported obligation is so vague as to be potentially meaningless (and, indeed, I think the constitutional challenge that, inter alia, it is void for vagueness has merit). What does “equality” mean? That’s not exactly a simple questions, since equality, and the various philisophical conceptions of it, has been debated for thousands of years (which debate is ongoing). Does it mean the Aristotelian concept of “treating equals equally” (an understanding once used to justify slavery and the subjugation of woman? Is it equality before the law? Equality of opportunity? Equality of outcome? Again, who knows? I note that the drafters of the Charter were clearly aware of this ambiguity, as they certainly didn’t impose on governments the general obligation to treat citizens equally in drafting section 15(1) – they made a point of defining equality as equality before and under the law, including the right to equal protection and benefit of the law. Perversely, in Ontario, lawyers now have a much broader obligation to promote equality than the governments of Ontario or Canada.

    I’ve objected to the statement of principle on the basis that there is no legal authority for the existence of an obligation to promote equality, diversity and inclusion generally (and, despite repeated requests, have not received any particularly compelling authority to the contrary from the LSUC) and that if the LSUC wants to impose such an obligation they should amend the Rules to do so. But apart from the (rather fundamental) rule of law point – that obligations need to have some legal authority for them to be binding – if they do want to impose such an obligation, it should be expressly set out in the Rules, with a corresponding commentary, so that lawyers know exactly what actions they have to take, or not take, to comply with their obligation (and, crucially, aren’t at the whim of arbitrary diktats from the LSUC). Because, to your point, compliance with our obligations have to judged by our actions, we have to know what actions are required of us.

    And, again, your examples of the concept of “resolute” advocacy is telling. That obligation – which no one disputes – is set out expressly in section 5.1 of the Ontario Rules and is accompanied by a 10 paragraph commentary. If my obligation to “promote equality, diversity and inclusion generally” is analogous to my obligation to resolutely represent my clients, why isn’t it expressly set out in the Rules and accompanied by a corresponding commentary? Why do we have to rely on vague language, premised on a tortured interpretation of general provisions of the Rules? Why can’t the LSUC point to a single provision which states that lawyers have a duty to “promote equality, diversity and inclusion generally”?

    Finally, on the distinction between beliefs and actions, and in fairness to some of the critics you cite, the initial material provided by the LSUC expressly required that members’ statement of principles demonstrate that they “value” equality, diversity and inclusion. While I agree complying with such an obligation does not require believing in those values, that was not the interpretation given to statement of principles by the LSUC.

    Best Regards

  6. I have always had an issue with this term, and its use in professional ethics. I’ve deliberately struck it in areas of practice or education where it has come up, and replaced it with “thoroughness.”

    The word “zeal” comes from a Latin word zelus, meaning jealous. To my mind, the term is most easily analogized to the use in שְׁמוֹת (Exodus) 39:14, often translated as,

    Do not worship any other god, for HaShem, whose name is Jealous, is a jealous G_D.

    The phrase is one that is highly disputed, especially among apologists who interpret this in the context of a universal truth.

    A better approach is to look at the Hebrew term for jealous, קַנָּ֖א, which really means to put the cause of first and foremost. The concept of עבודה זרה, or idolatry in Judaism, is more akin to a concept of foreign worship by bringing in practices or priorities that would compete with this devotion. Rambam described this in Hilchos Avodah Zarah 1:1 as honouring subsidiary interests above and beyond a primary interest. In this manner, zealousness towards a client, when tempered of course with the obligation to the justice system, can be understood as striving in their cause even where it may have adverse effects on personal finances or even public reputation.

    The comparable term in Aramaic, which was the lingua franca for most Jews during the Second Temple period, the term also meant nest, rookery, hive, or brood, when used as a noun, or to get, obtain, or possess, when used as a verb. Tending to a client’s matter, and obtaining the appropriate documentation, maintaining their file as a nest, and being possessive or attentive to their interests, appear to be reasonable interpretations of this concept within the practice of law.

    Where we get into more problematic interpretations of this term in this context is in the late Second Temple period, where a Jewish zealot group known as the Sicarii (סיקריים after a small dagger they would use) were engaging in zealous violence (some would call terrorism) against the Roman state at the time. They were particularly prominent preceding the fall of the Second Temple, and are commonly associated with the last stand at Masada. Though in this latter context they are popularly celebrated today in Israel as nationalistic revolutionaries, for both the Jewish establishment and the budding Christian faith at the time, they were perceived as dangerous, irrational, and counter-productive.

    To illustrate, many early Syriac texts identify Judas Iscariot as a ܣܟܪܝܘܛܐ, or member of this faction. Whether he was or was not is secondary, as the association was intended to demonstrate the dangers of zealousness, and incidentally was later used to foster anti-Semitism. The kiss of Judas at the Garden of Gethsemane has therefore been interpreted by some as an attempt to zealously spark a revolution, which was almost initiated when one of the apostles drew a sword and cut off a priest’s ear. Jesus’ message of patience and non-violent advocacy was interpreted within this context to specifically advocate for non-violent, pacifist, yet still zealous spread of the early Church, directly in contrast with the Sicarii approach.

    The breadth of interpretations that a term like “zeal” provides is certainly problematic, and I agree should be understood within the broader context of professionalism. I often go further and state that it is the invocation of this concept of zeal which itself leads to uncivil and ultimately unprofessional conduct.

    I do hope that future discussions of professional ethics reconsider this terminology, and replace it with a word that is more precise and better encompasses the concepts that we currently understand as associated with professionalism.

  7. It is unclear to me why a Statement of Principles should need to be incorporated into the Rules to find legitimacy. Can they not serve as defining guidelines on their own? See another profession: Canadian naturopaths https://www.cand.ca/guiding-principles/

    But if you argue one cannot compare naturopaths with lawyers, do we think our Rules, to begin with, had no other influences from other professions?

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