In law school, lawyers begin to be engrained with the concept of ethical duty of zealous advocacy. While this concept used to be in the Rules of Professional Conduct, over time, it has been removed. It has even been largely removed from the ABA’s Model Rules, upon which many State’s rules have been based upon, other than in statements in the Preamble that say, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and:
In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (Emphasis added).
Nevertheless, time and again you hear the refrain, in defense of an aggressive if not improper action, position, etc. that “I was only being a zealous advocate.” However, assuming for arguments sake, that the duty of zealous advocacy exists in either some express or implied way, there certainly seems to be a difference between zealous advocacy and overzealous advocacy. While the former may be appropriate, the latter is often not. Moreover, it can be very costly, both financially and emotionally for the parties.
In a recent matter, I have seen an attorney send subpoena after subpoena seeking records, that if obtained, would add nothing to her client’s case. In some instances, it is more than a fishing expedition or seeking a needle in a haystack, as even if the records were produced, no matter what they said, they would have no probative value in the case. Moreover, when the subpoenas were not responded to or not responded to the their liking, threats of contempt followed. Even the seemingly appropriate subpoenas seem needless given that a third party with much greater resources had already done an investigation. There is one thing about leaving no stone unturned when there is a possibility that the due diligence will be fruitful, and quite another when it is a clear waste of time and money, if not harassment of third parties, from the start. In that case, the “my client just wants to be sure” defense may not really cut it.
What about the lawyer that lies to further their client’s interests. I have previously done a blog entitled The Lawyer The Liar which discussed this improper practice.
How about taking and litigating a position that is either contrary to the law, contrary to the facts, or both, and refusing to give it up notwithstanding. I have seen lawyers push these issues because their client wanted to, because they figured they could make money and/or they figured they would wear the other side down and force them to capitulate to be done. There are many other examples that I am sure my colleagues can add about examples of overzealous advocacy.
When the offender is called on these tactics, they hide behind the “zealous advocacy” shield. The question to ponder is what is a court to do when zealous advocacy crosses the line to overzealous advocacy. Whether or not this rises to an ethical issue, will a court make the other party whole or at least put a stop to it? If not, are we not rewarding pushing the envelope?
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.
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