CIVILITY AND CORDIALITY: Limits on Zealous Advocacy?
Published in the Palm Beach County Bar Association Bulletin | April 2023
By Jennifer S. Carroll
Do civility and cordiality limit zealous advocacy?
All too often, in practice, civility, cordiality, and respect simply do not exist. Civility is replaced by rudeness, hostility, and disrespect for opposing counsel, the opposing party, and even for the court.
Many believe that if they are in litigation — it is wartime, and it is part of their duty to “zealously” represent their clients. To these folks, civility and courtesy are equated with weakness.
Attorneys are called upon to be “zealous” advocates for their clients: they must represent their clients zealously “within the bounds of the law.” But what does “zealous” advocacy really mean?
“Zealous advocacy” is often described in a negative light:
Zealous advocacy is the buzzword which is squeezing decency and civility out of the law program. Zealous advocacy is the doctrine which excuses, without apology, outrageous and unconscionable conduct so long as it is done ostensibly for a client. Zealous advocacy is the modern day plague which infects and weakens the truth-finding process and which makes a mockery of the lawyer’s claim to officer of the court status.
[Honorable Judge Richard Illinois Circuit Court Cook County.]
The legal profession is the last bastion of unfettered, unapologetic nastiness, proudly flying the flag of zealous client representation.
[Noah Feldman, “Lawyers Can Be Zealous Without Being Nasty” (Bloomberg 2016).]
Determining civility interrupts the administration of justice. It makes the practice of law less rewarding. It robs a lawyer of the sense of disparity and self worth that should come from a learned profession. Not least of all, it brings with it all the problems that account for low public regard for lawyers and lack of confidence in the justice system.
[Former ABA President, Lee Cooper.]
Zealous representation is open to interpretation. It is not clearly defined.
In its ordinary meaning, the term “zealot” means a person who is fanatical and uncompromising. Certainly such behavior would fall outside even the minimum level of professionalism.
Some states, including Arizona, Ohio, Indiana, and Washington, have even removed the word “zeal” from their ethics rules. The Washington State Bar Association (“WSBA”), for example, replaced “zealous” with “conscientious and ardent”, and replaced “zeal” with “diligent”. In support of these changes, the WSBA Board of Governors Report stated:
Owing to its etymology, the word ‘zealous’ in this context could inappropriately be interpreted to condone the extreme or fanatical behavior of a type that would be inconsistent with a lawyer’s professional obligations.
(quoted in Confidentiality and Candor Under the 2006 Washington Rules of Professional Conduct, 43 Gonz. L. Rev. 327, 333 (2008)) Ethics and Professionalism (ABA Litigation §, 2021).
Attempts have been made by some appellate courts to temper the zealousness of advocacy with the equally important principles of civility, courtesy, and cooperation. Nix v. Whiteside, 475 U.S. 157 (1986) (“an attorney’s ethical duty to advance the interests of his client is limited but an equally solemn duty to comply with the law and standards of professional conduct.”) Zealous advocacy does not displace an attorney’s obligations as an officer of the court. Azar v. Garza, 138 S.Ct. 1790, 1793 (2018).
As stated in In re Marriage of Davenport, 194 Cal. App.4th, 1507, 1537 (Cal. App. 1st Dist. 2011):
we close this discussion with a reminder to counsel – all counsel – regardless of practice, regardless of age, that zealous advocacy does not equate with attack dog or scorched earth; Nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, collegiality, and cooperation. They are not mutually exclusive.
In The Florida Bar v. Buckle, 771 So. 2d 1131 (Fla. 2000), a defense lawyer was disciplined for sending an intimidating letter to a criminal complainant. The opinion notes that “zealous advocacy cannot be translated to mean win at all costs, and although the line may be difficult to establish, standards of good taste and professionalism must be maintained.” Taking the word “zeal” to its natural conclusion, at least one court has made it clear that lawyers, as advocates and officers of the court, should not be “zealots.” State v. Richardson, 514 N.W.2d 573 (Minn. Ct. App. 1994) (attorney at trial is advocate, and, as an officer of the court, could not be a zealot).
Attorneys owe duties to their clients — but also to the justice system itself. Attorneys are expected to represent their clients to the best of their ability and within the bounds of the law. But an attorney is also an officer of the court and must work to maintain the integrity of the justice system. These are not just words.
Incivility continues in the legal system, despite case law admonitions, articles, committee work, and rhetoric.
According to the ABA, as of 2017, only 27 states had adopted civility codes. These are guidelines which focus on “civility” — going beyond the standard rules of professional conduct.
As of 2019, 93% of Americans identified a major civility problem in this country. Within the American bar, incivility is pervasive.
Florida has recognized the need for “civility” guidelines. In 2011, the Florida Supreme Court amended the oath of admission to The Florida Bar to include a pledge of “fairness, integrity, and civility” to the court and opponents “in all written and oral communications”.
In the Guidelines for Professional Conduct, created by the Trial Lawyers Section of the Florida Bar and adopted by the Conferences of Circuit and County Court Judges, one of the seven general principles is:
4. A lawyer should be courteous and civil in all professional dealings with other persons. Lawyers should act in a civil manner regardless of any ill feelings that their clients may have toward others. Lawyers can disagree without being disagreeable. Effective and zealous representation does not require antagonistic or acrimonious behavior. Whether orally or in writing, and whether in or out of court, lawyers should avoid vulgar language, disparaging personal remarks, or acrimony toward other counsel, parties, or witnesses.
And under the Trial Conduct and Courtroom Decorum Section of the Guidelines:
1. A lawyer always should interact with parties, counsel, witnesses, jurors or prospective jurors, court personnel, and judges with courtesy and civility, and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings.
https://www.floridabar.org/prof/regulating-professionalism/presources002/ (as of Feb. 23, 2023).
Unfortunately, principles of civility and cordiality become meaningless without a means of implementation and enforcement. But can such principles be enforced?
Certainly all judges dislike incivility in the courtroom. But many do not want to get in the middle of the fray — so they ignore. But such inaction simply creates an image of complacency — condoning such behavior as acceptable advocacy. And consequently the behavior continues and is repeatedly perpetrated in the system.
Some have described a judge in this context as a “passive ticket holder to a lawyer’s night club act.” Gerber, Victory vs. Truth: The Adversary System and its Ethics, 19 Ariz. St. L. J. 3, 23 (1987). One particular judge charged many of his colleagues as being “withdrawn from the fray, [and] watch it with benign and detached affection, chuckling nostalgically now and then as the truth suffers injury or death in the process.” Frankel, The Search. for Truth: An Umpireal View, 123 U. PA. L. Rev. 1031, 1034 (1975).
Writers have suggested a variety of remedial measures, ranging from providing young lawyers with better education concerning ethical matters; removing the terms zealous and zealous advocacy from ethics rules and the comments thereto; to encouraging judicial intervention and enforcement. Perhaps the latter approach is more appropriate given the nature of an “adversary” system.
Perhaps it will take a more active role by the judiciary to at least call out, or intervene where incivility runs rampant. And if practitioners know that such behavior will not be accepted, perhaps that can make a difference. See generally Dondi Properties Corp. v. Commerce Sav. and Loan Ass’n, 121 F.R.D. 284 (N.D. Tex. 1988).
The duty to zealously represent one’s client does not require the use of offensive tactics or preclude the treating of all persons involved in that litigation process with courtesy and respect. Zealous advocacy is not incivility. It is not rude advocacy. Being a zealous advocate does not mean that one abandons all sense of professionalism, courtesy, and common decency.
Civility, courtesy, and cooperation with opposing parties and their counsel will not diminish the effectiveness of zealous advocacy. Civility, courtesy, and cooperation are not limits on zealous advocacy on behalf of clients. Rather, they are a more effective method of advocacy that better balances the attorneys’ dual role as client advocate and officer of the court.
Jennifer S. Carroll concentrates on civil appeals as well as complex civil litigation in both state and federal courts, including post-judgment proceedings. Ms. Carroll is a Board Certified Appellate Lawyer, is AV-rated, and is listed in the Bar Register of Preeminent Lawyers. She is admitted to practice before all state courts, the U.S. Supreme Court, U.S. Court of Appeals for the Eleventh Circuit, and the U.S. District Courts for the Middle and Southern Districts of Florida.