Zealous Advocacy: A Doctrine Whose Time Has Passed?
8.20.2024
Overview: ‘A Duty of Loyalty’
Almost 40 years ago, the United States Supreme Court acknowledged that a criminal defense counsel’s duty to represent a client is not without limits. The court wrote, “that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.”[i] Nevertheless, this position runs counter to the doctrine of zealous advocacy, which originated during proceedings in the British House of Lords in 1820 in which counsel for the embattled Queen Caroline – Lord Henry Brougham – in a revolutionary statement, proclaimed that a lawyer owes a duty of loyalty to the client alone rather than to the nation or other interests. A recent entry in “Corpus Juris Secundum” bears witness to Lord Brougham’s imprint on American legal culture:
An attorney bears a duty of loyalty to a client whereby the attorney devotes his or her entire energies to the client’s interests. The attorney-client relationship is grounded in the fundamental understanding that an attorney will give complete and undivided loyalty to the client so that the attorney should be able to advise the client in such a way to protect the client’s interests.[ii]
This zealous advocacy doctrine held a controversial place in our national standards of lawyer conduct during much of the last century, but lost ground in 1983 when the American Bar Association issued its Model Rules of Professional Conduct. The 1983 Model Rules omitted any reference to zealous advocacy except from the ABA Comments explaining the rules. In 2009, the New York bar regulators eliminated all references to the zealous advocacy doctrine from the state professional standards for lawyers, replacing it with the requirements that attorneys provide their clients with competent representation.[iii]
Nonetheless, even in 2024, lawyers and judges in New York continue to reference the zealous advocacy doctrine. The authors view this reliance as mistaken because the doctrine too often serves as justification for bullying adversaries, presenting false statements to the court and using “hardball” tactics in the problematic service of financial gain or political advantage.
From the most commonplace motion in local court to the most consequential application reaching the United States Supreme Court, competing approaches to honesty to the tribunal pull counsel in opposite directions. In this article, we argue that the doctrine of zealous advocacy unnecessarily pulls lawyers in the wrong direction, the direction advocated by Brougham two centuries ago. Unnecessarily because the zealous advocacy has been removed from the standards of lawyer conduct in New York State. Moreover, the doctrine pulls counsel in the wrong direction because it espouses principles that conflict, or at least compete, with several of the rules in the New York Rules of Professional Conduct, promulgated in 2009 and codified as a court rule in 22 NYCRR 1200.0.
The 75-page Rules of Professional Conduct and the supplementary NYSBA Comments – as opposed to ideas derived from the zealous advocacy doctrine – provide New York lawyers with the guidance needed for the ethical practice of law. As the “Corpus Juris Secundum” points out in a note about the limits of zealous advocacy: “The rules of professional conduct impose outer bounds on an attorney’s pursuit of a client’s interests.”[iv]
Zealous Advocacy and the Rules of Professional Conduct: ‘Totally Eliminated’
In 2009, a joint committee of the four departments that comprise the Appellate Division promulgated standards of lawyer conduct that omitted all references to zealous advocacy. The Rules of Professional Conduct replaced the 1970 Code of Professional Responsibility, which had incorporated the zealous advocacy doctrine and by so doing continued a tradition begun with the 1909 Canon of Ethics.
Just as the joint committee removed zealous advocacy from the Rules of Professional Conduct, NYSBA eliminated any references to the doctrine from the preamble, scope and comments, which include ethical precepts not part of 22 NYCRR 1200.0.[v] As New York ethicists Steven C. Krane and David A. Lewis observe: “The word ‘zeal’ has been totally eliminated from the Rules and replaced by the concept of ‘diligence.”[vi] Although gone from New York bar standards, the belief that the zealous advocacy doctrine has continued viability lives on in the professional literature, law offices and judicial decisions. Thus, proponents of the new standards have not yet vanquished the doctrine.
Conflict Between the Zealous Advocacy Doctrine and the Rules of Professional Conduct: ‘A Fundamental Tension’
Even when defined as zealous representation “within bounds of the law,” the zealous advocacy doctrine, in several significant respects, stands in opposition to the letter and spirit of the Rules of Professional Conduct.
Diligence Versus the Zealous Advocacy
Stating counsel’s basic obligation to a client, Rules of Professional Conduct 1.1[a] and 1.3[a], respectively, call for “competent representation” and “reasonable diligence,” in the representation of a client. With equal restraint, the NYSBA Comment to Rule 1.1[a] cautions that a lawyer is not required “to press for every advantage that might be realized for a client.” In contrast, a proponent of zealous advocacy, William R. Wernz, author of the online treatise “Minnesota Legal Ethics,” opines that the “merely diligent” lawyer “will not serve the client’s legitimate needs.”[vii] And, in an apparent attempt to the reconcile the two points of view, the Restatement (Third) of the Law Governing Lawyers observes that for “legal purposes” zealous representation “encompasses the duties of competence and diligence.”[viii]
Loyalty to the Justice System or the Client?
While recognizing counsel’s role as an advocate for the interests of a client, the first paragraph of the NYSBA preamble to the Rules of Professional Conduct teaches that “[a]s an officer of the legal system, each lawyer has a duty to uphold the legal process.” Proponents of zealous advocacy, on the other hand, minimize a lawyer’s duty to the justice system and place a premium on zealous counsel’s undivided loyalty to the client.
The conflict between the two approaches has confounded lawyers for decades. In an article published over 25 years ago, lawyers, the author notes, “often feel torn by the tension between the duty of zealous advocacy and the duty to the larger system of justice . . .”[ix] And as recently as 2023, an article stated: “The ‘competing conceptions’ of lawyer as zealous advocate versus lawyer as officer of the court is a fundamental tension in legal ethics.”[x]
Allocation of Authority
Another point of difference between the zealous advocacy doctrine and the Rules of Professional Conduct involves the allocation of decision-making authority. RPC 1.2[a] delegates to counsel authority over tactics, a principle that has long been recognized by state and federal courts, including the Supreme Court. This allocation of authority conflicts with the client-centered model of zealous lawyering that promotes client involvement in a broader range decision-making than is contemplated by the Rules of Professional Conduct.[xi]
Candor to the Tribunal
Writers on legal ethics recognize the tension between the zealous advocacy doctrine and the rules demanding honest dealing with the court. “. . . [D]efense attorneys are in practice held to a high standard of candor to the tribunal, leading to conflicts with zealous advocacy.”[xii] By arguing that it is permissible for counsel to lie to the court when counsel deems it necessary and in the client’s interest – as was advocated by Professor Monroe Freedman – the zealous advocacy doctrine competes with the obligation imposed on counsel by RPC 3.3[a]’s directive to avoid the knowing presentation of false statements to the court and RPC 8.4[c] prohibition of conduct involving dishonesty, fraud, deceit or misrepresentation.
Professor Freedman, who died in 2015, was an eminent ethicist and one of zealous advocacy’s greatest proponents. His writings encourage lawyers to subordinate truth and candor to the court to other values underlying the legal system. A critic of zealous advocacy cites Freedman’s writings on ethics in which he (Freedman) contends that while truth “is an important premise of the adversary system, it is neither the only premise nor the vital one.”[xiii]
The issues raised by the conflict between zealous advocacy and the Rules of Professional Conduct relate to the question of how far a lawyer should go in representing his client. Lord Brougham first offered an answer to this question in 1820.
Lord Brougham and the Queen’s Case: Counsel’s ‘Sacred Duty’
Brougham’s advocacy in the case of Queen Caroline figures as the origin of a model of lawyering that places the interests of the individual client ahead of the interests of society. “Inspired by Henry Lord Brougham,” Freedman wrote in 2006, “the traditional aspiration of zealous advocacy remains the fundamental principle of the law of lawyering . . .”[xiv] While this observation about the fundamental role of zealous advocacy in lawyering has now been repudiated by the Joint Committee of the Appellate Division, Freedman correctly identified Brougham as the architect of the doctrine.
A blog from the British Library sets the stage for the controversy that would give birth to the idea of zealous advocacy.[xv] Prince George, heir to the throne during the reign of King George III, married his cousin, Caroline, in a loveless union. After the wedding, Princess Caroline set out on an extended tour of Europe, which ended when her husband ascended to the throne as King George IV. “As soon as George IV became king in 1820, Caroline returned to England to claim her place as Queen of England. Outraged and seeking a divorce, the king pressured Parliament to prepare a bill to strip Caroline of her title and end the marriage by Act of Parliament.”[xvi] The passage of the bill through Parliament “became a spectacular cause celebre” and “the ‘trial’ of Queen Caroline became, as the government feared, a cause which radical parliamentary reformers exploited, as yet one more example of a corrupt political establishment . . .”
One of England’s most eminent lawyers, Lord Brougham, represented Queen Caroline during the proceedings initiated by the government of King George IV. While Caroline was charged with scandalous behavior (adultery), George IV himself did not stand beyond reproach. Brougham knew of the evidence undermining the king’s right to the throne. “Presenting such evidence at trial might throw the country into a national crisis, but Brougham refused to pull any punches.”[xvii]
With the case in this posture, Brougham articulated an approach to lawyering that gave birth to the modern zealous advocacy doctrine. At the start of his presentation to the House of Lords on Oct. 3, 1820, Brougham cautioned members that he would not “hesitate one moment” to fearlessly discharge his duty as a lawyer if such an approach advanced the cause of his client.[xviii]
The parliamentary record goes on to recite Brougham’s famous credo:
[A]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means – to protect that client at all hazards and costs to all others, and among others to himself – is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other; nay, separating even the duties of a patriot from those of an advocate, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client.[xix]
Brougham could have undermined King George’s tenure as monarch, a position threatened by his prior secret marriage to a Roman Catholic while an heir to the throne. Under British law, no Catholic or person married to a Catholic could sit on the throne.[xx]
Citing the eminent lawyer’s 1871 memoir, Freedman recounts Brougham’s reflection that then-Prince George’s marriage to a Roman Catholic constituted “a forfeiture of the Crown ‘as if he were naturally dead.’”[xxi] Freedman points to Brougham’s recognition of the potency of the damning information he possessed about the king. “What I said was fully understood by Geo. IV [and others], and I am confident that it would have prevented them from pressing the Bill beyond a certain point.”[xxii] Because of Brougham’s skill as an advocate – and the potency of his threats – proponents of the bill ultimately failed to divest Caroline of the crown.
News of Brougham’s victory soon reached the United States where for the next two centuries lawyers debated the merits of the doctrine he promoted.
The Reception of the Zealous Advocacy Doctrine in the U.S.: ‘Atrocious but Memorable’
Brougham’s statement at the trial of Queen Caroline was known to 19th-century lawyers in the United States. The authors of an article published in Litigation, an ABA publication, state that “[a]t first, Brougham’s position won the day in the United States and was the standard in our rules of ethics.”[xxiii] This view is challenged in an article published in the Northern Illinois University Law Review: “Brougham’s rhetoric did not represent a traditional view of the American lawyer’s duty of zealous representation, nor did it frame the basic narrative of American lawyering.”[xxiv]
A distinguished New York lawyer and law reformer, David Dudley Field, was among the first and most vocal of Brougham’s American critics.[xxv] Commenting on the Field Codes – procedural regulations adopted in New York State in 1848 – one author notes Field’s antipathy to Lord Brougham’s statement on the obligation of a lawyer “to carry his zeal for his client so far, as to forget that there is any other person in the world beside him, and to lose sight of every other consideration than the one of his success.”[xxvi] With respect to this assertion, Field responded in 1844: “A more revolting doctrine scarcely ever fell from any man’s lips.”[xxvii]
A 2009 law review article also focused on Field’s rejection of Brougham’s approach to lawyering. “Field himself added commentary (unusual for the Field Code) as to the limits of proper advocacy. He explained that contrary to the position attributed to Brougham, lawyers had limits on their advocacy even in criminal cases.”[xxviii]
In The President, the Directors and Company of the Third Great Western Turnpike Road Company v. Loomis, a case that came before the Court of Appeals in 1865, New York’s highest court characterized Brougham’s speech in the queen’s case as “atrocious but memorable.”[xxix] After quoting from Brougham’s speech to the House of Lords, the Great Western court stated that “[s]uch proposition shocks the moral sense . . .” Yet the court acknowledged that there exists “much diversity of opinion, even among eminent members of the profession, as to the measure of obligation imposed upon counsel by the implied pledge of fidelity to the client.”[xxx]
The danger of such fidelity led to the Great Western court to observe that witnesses on cross-examination need judicial protection “from irrelevant assault and inquisition.”[xxxi] “When this power of protection is withdrawn, is it to be expected that counsel, deeply enlisted for their clients and zealous to maintain their rights, would feel bound to exercise toward witnesses a forbearance which the courts themselves refuse?”[xxxii] Although the court took a dim view of Brougham’s approach to lawyer ethics, it recognized the existence of a legitimate debate within the profession about counsel’s obligations to clients.
Five years after the issuance of the Great Western decision, the trial court in McFarland’s Case cited Brougham’s speech in its jury instructions to counter the prosecutor’s condemnation of defense counsel’s conduct in a murder case.[xxxiii] “The zeal of the counsel for the defense has been criticized by the district-attorney,” the court noted.[xxxiv] Explaining defense counsel’s conduct of the case, the court presented this instruction to the jury: “I deem it to be my duty to repeat to you the extreme rule governing the duty of counsel.”[xxxv] Notwithstanding the characterization of Brougham’s doctrine as an “extreme rule,” the court told the jurors: “I do not say whether I approve it or disapprove it – I state it as the extreme view, and one which any counsel for defense might adopt with conscientious belief in it.”[xxxvi]
Both Great Western and MacFarland’s Case suggest an ambivalence on the part of the judiciary with respect to Brougham’s view of counsel’s obligation. While condemning the Brougham doctrine, the courts in these two cases acknowledged at least the possibility of its proper application. Although criticized by courts and commentators and rejected by state bar regulators, the Brougham doctrine left a longstanding legacy: the concept of zealous advocacy. But Brougham’s speech in the queen’s case did not, and cannot, substitute for a code of ethics nor did it promote the image of the profession.
In the absence of a detailed code of lawyer conduct, the profession suffered a decline in its reputation in the early 20th century. As one modern writer noted: “Much was tied to this air of crisis, a belief that an honorable profession was now in ‘ill-repute.’ The profession’s poor reputation was a consequence of lawyers thinking only of the needs of their clients, as suggested by Brougham.”[xxxvii] And so, the elite bar set out to issue standards of lawyer conduct that would keep lawyers on an ethical track and assure the public about the integrity of the profession.
Canons of Professional Ethics: ‘Warm Zeal’
In 1908, the American Bar Association addressed the “poor reputation” of the profession by enacting the Canons of Professional Ethics, ethical guidance that was adopted by the New York State Bar Association. “The promulgation of Canons was intended to help the legal profession enhance its reputation and, thereby, better perform its important social and political role as America’s ‘governing class . . .’”[xxxviii] President Theodore Roosevelt’s 1905 commencement address at Harvard, which emphasized the morality and social responsibility of the profession, helped spur the ABA’s early efforts to codify standards of lawyer conduct.[xxxix]
Responding to the threat of reputational decline, Canon 15 declares that “[n]othing operates more certainly to create or to foster popular prejudice against lawyers as a class . . . than the false claim, often set up by the unscrupulous in defense of questionable transactions . . .”[xl]
While the Canons of Professional Ethics, just six pages in length, cautioned against out-of-bounds conduct eroding the “public esteem” enjoyed by the profession,[xli] the Canons also stated, in an obvious nod to Brougham, that “[t]he lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights . . .”[xlii] This statement of a lawyer’s duty reflects Brougham’s speech to the House of Lords.[xliii]
Canon 15, as faithful to Brougham’s view of counsel’s duty to the client as it was, did not, and could not, help the profession resolve the vexing conflict between a doctrine cautioning against misconduct and one requiring advocacy fueled by “warm zeal.” As Freedman noted, the Canons “failed to give ethical guidance, and did not adequately lend themselves to practical sanctions for violations.”[xliv] When the ABA Code of Professional Responsibility replaced the aged Canons in 1969, the profession gave expanded focus to the idea of zealous advocacy.
Codes and Rules: ‘Boundaries of the Law’
The ABA replaced its single reference to “warm zeal” found in Canon 15 with multiple references to “zeal” or “zealous” in the 1969 Code of Professional Responsibility. New York quickly adopted Canon 7 in the 1969 Code, which states: “A lawyer should represent a client zealously within the boundaries of the law.” DR 7-101, the rule governing the obligations of counsel, began with the heading “Representing a Client Zealously.” Under DR 7-101[A][1], “[a] lawyer shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rule . . .” The “aspirational” “Ethical Considerations” related to Canon 7 make several references to zealous advocacy.
Canon 7 of the Code of Professional Responsibility was criticized for “signaling mere guidance rather than a basis for discipline.”[xlv] The canon was also faulted because it seemed “to emphasize diligence more than zeal . . .”[xlvi] Broader dissatisfaction with the 1969 Code led to its replacement by the ABA Model Rules of Professional Conduct in 1983, which New York adopted in 2009.[xlvii]
Adoption of the New York Rules of Professional Conduct ended the four-decade era (1970-2009) in which the Code-based standards mandated adherence to the doctrine of zealous advocacy. Rather than urging zealous advocacy as the 1970 Code did, RPC 1.3[a] commands “reasonable diligence and promptness in representing a client.” ABA Model Rule 1.3 presents the same requirement. But while the ABA Comment to Rule 1.3 suggests that a lawyer act “with zeal in advocacy upon the client’s behalf,” the New York Comment on Rule 1.3 – with greater restraint – tells lawyers to “act with commitment and dedication to the interests of the client . . .” and makes no reference to “zeal.”
Commenting in the New York Law Journal on the history of Rule 1.3, one writer in 2011 reflected: “It appears that the deletion of the words ‘with zeal’ was not inadvertent.”[xlviii] Omission of even the words “zeal” and “zealous” from the new regulatory regime signaled that the chief justice of the Court of Appeals and the Joint Committee of the Appellate Division – made up of the four presiding justices responsible for the quasi-legislative code governing lawyer conduct – intended to eliminate this doctrine from the professional standards regulating lawyers.[xlix]
While the adoption of the Rules of Professional Conduct in 2009 reduced or eliminated reliance on the zealous advocacy doctrine, the vestiges of the doctrine continue to fuel a debate about whether lying or otherwise presenting false evidence to the court is ever permissible.
Monroe Freedman and Candor to the Tribunal: ‘The Ultra-Adversarial Norm’
In an article published in 2006, Freedman took the position that there are circumstances that “can require a lawyer to make a false statement to a court or to a third person, or to engage in other conduct involving dishonesty, fraud, deceit or misrepresentation.”[l]
Freedman argued that false statements to the court may be justified by the principle of “zealous representation, which embraces the ethical requirement of competence and confidentiality.”[li] This approach places him within a recognizable place in legal ethics. “Some scholars adhere to the ultra-adversarial norm proposed by Lord Brougham and sponsored most fiercely in modern times by Monroe Freedman.”[lii]
“One attraction of the so-called Brougham principle is that it simplifies lawyers’ lives. If a lawyer’s ethic of zeal requires ‘entire devotion to the client’ [as Brougham declared] – meaning that all considerations must give way before this ‘entire devotion’ – then the lawyer does not need to balance, accommodate, or choose among competing values.”[liii]
Commenting on Freedman’s ethics textbook, which addresses the issue presented above, Professor Stephen Gillers neatly summarizes Freedman’s approach – which he characterizes as “wrong” – to candor to the tribunal. “Freedman argues that where the lawyer is defending a person accused of a crime, the ethics rules should subordinate the third obligation, candor to the court, to the other two obligations [the duty of competence and the duty of confidentiality].”[liv]
We disagree with the approach taken by Freedman, who deservedly has been characterized as a “legal ethics giant.”[lv] Freedman’s justification for “lying to judges,” part of the title of his 2006 article, presents a good reason for discarding whatever is left of the zealous advocacy doctrine.
Freedman acknowledges that the rule prohibiting a lawyer from making a “false statement of fact to a court” is among the ethical strictures “that are unquestionably sound and desirable.”[lvi] Yet he finds a basis for violating the rule barring counsel from making a false statement to a court. “My argument here . . . is that zealous representation – ‘entire devotion to the interests of the client’ – may sometimes require the lawyer to violate other disciplinary rules.”[lvii] But neither the RPC nor the penal law allow a lawyer to make false statements to the court or to defy a court order for any reason even under the circumstances stated in Freedman’s hypothetical.
Freedman considers a situation in which a judge requires counsel to comment on the client’s culpability. “Did he do it, or didn’t he?”[lviii] By presenting this question, “the judge has improperly placed the lawyer in the position of violating confidentiality and incriminating her client.”[lix] Imagining a plausible but evasive answer, “. . . I have no doubt that this defendant is not guilty.” Freedman opines that such a response would “constitute a false statement of fact to the court.”[lx] Yet Freedman approves of mendacity in this circumstance.
Applying RPC 3.3 to Professor Freedman’s Defense of Lying: Destroying ‘the Duty of Confidentiality’
The Rules of Professional Conduct specifically prohibits the dishonesty to the court that Freedman excused. RPC 3.3[a][1] forbids a lawyer from “knowingly mak[ing] a false statement of fact or law to a tribunal.” RPC 3.3[a][3] extends the prohibition on false statements spoken by the lawyer in court to include false evidence knowingly offered by counsel. As Roy Simon points out in his treatise on New York ethics law: “Notably, the duty not to ‘make’ a false statement is not limited to a statement of ‘material’ fact . . . Thus, even a small white lie to a tribunal is prohibited by the literal language of Rule 3.3[a][1] . . . The point here is that the opening clause of Rule 3.3[a][1] articulates a very broad ‘thou shall not.’”[lxi]
If a New York judge in Freedman’s hypothetical ordered (not just asked) counsel to disclose confidential information, there would be no question about the lawyer “violating confidentiality” because the Rules of Professional Conduct allow – and actually require – such disclosure “when permitted or required under these Rules or to comply with other law or court order.”[lxii] As Simon observes: “Once a court issues a final order requiring disclosure, a lawyer can no longer claim protection of Rule 1.6. In other words, a final court order destroys the duty of confidentiality.”[lxiii]
In any event, the confidentiality protection offered by RPC 1.6 does not provide a safe harbor for offering a false statement to the court in violation of RPC 3.3. As stated in RPC 3.3[c]: “The duties stated in paragraphs [a] [prohibiting a counsel from making a false statement the tribunal] and [b] [requiring counsel to take “remedial measures in response to fraud” tribunal by a “person”] apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. As Simon points out, under this narrow exception, candor trumps confidentiality: “Rule 3.3(c) is unique. It is the only rule in the New York Rules of Professional Conduct that expressly requires a lawyer to violate the sacrosanct duty of confidentiality expressed in Rule 1.6.”[lxiv]
In short, a mendacious lawyer cannot rely on the principle of confidentiality when a court orders disclosure of information covered by RPC 3.3. Nor does the wrongfulness of the court’s order undermine the court’s authority to require compliance. Consider the Court of Appeals decision in Balter v. Regan, in which defense counsel defied the order of the trial court to proceed to trial irrespective of a conflict of interest identified by counsel.[lxv] In an Article 78 proceeding, counsel challenged the trial court’s adjudication of contempt.
The finding of contempt was upheld in the Appellate Division and affirmed by a divided Court of Appeals, which disregarded the merits of counsel’s argument about the conflict of interest. “However misguided and erroneous the court’s order may have been, petitioner was not free to disregard it and decide for himself the manner in which to proceed.”[lxvi]
Citing Balter, in 2023, a trial court ruled that “[a] good faith belief that a court order is improper or unlawful will not render the order unlawful nor will it excuse willful disobedience.”[lxvii]
In Freedman’s hypothetical, as noted above, counsel protects the client’s confidentiality rights by deceitfully answering the question of the court about the culpability of the accused. Recall that the defendant would not be protected by RPC 1.6 – the basic confidentiality rule – because RPC 1.6[b][6] creates an exception to the basic rule when disclosure is mandated by court order.
Both Penal Law Section 215.50[3] and Judiciary Law Section 750[3] prohibit purposeful noncompliance with a court order. Thus, neither the statutory law nor the Rules of Professional Conduct insulate counsel from consequences when the lawyer thwarts a judicial order mandating disclosure of confidential information.
Of course, counsel may attempt to resist such an order by filing an Article 78 petition or seeking an order suppressing the introduction of confidential information at trial or asking for a hearing on the propriety of the court’s order. But at the end of the day, as the New York State Court of Appeals held in Balter v. Regan, an improper order is still an order.[lxviii]
Because ethical rules do not protect lawyers who engage in dishonesty, Freedman declared an intention to “venture beyond [emphasis supplied] the words of the ethical rules themselves, into the larger context of the lawyer’s role.”[lxix]
Freedman found authority to venture beyond the rules by proposing that there are certain sacrosanct principles – such as the lawyer’s responsibility not to disclose information obtained from the client – with respect to which “the judge has no right to ask” a question.[lxx] Leaving aside the question about whether a judge possesses a “right” to issue an order invading a party’s confidentiality interests, it is clear that a litigant has no “right” to violate such an order. The Balter decision laid to rest any claim that a litigant may defy a court order thought to be improper.
Freedman found support for his “overzealous” defense of client rights by pointing to the “Scope” section of the Rules of Professional Conduct. The “Scope” section was not written by the Joint Committee of Appellate Division but rather is the product of the ABA and NYSBA. In their sections on scope, both the ABA Model Rules and the New York Rules of Professional Conduct offer the idea that rules should be interpreted in the context of broader principles. The scope section, Freedman avers, “tells us that the black-letter rules ‘do not . . . exhaust the moral and ethical considerations that should inform a lawyer,’ because ‘no worthwhile human activity can be completely defined by legal rules.’”[lxxi]
But the “moral and ethical considerations” referenced in the scope section of the preamble are not part of the rules approved by the joint committee and offer insufficient guidance to lawyers confronting the issue presented by Freedman. As Simon notes: “In effect, the Preamble and Scope are like the [NYSBA] Comments themselves, providing a gloss on the Rules but not setting forth obligations and prohibitions.”[lxxii] It is the black-letter law – the Rules of Professional Conduct – that governs when a lawyer deals with ethical issues.
Further, reliance on “moral and ethical considerations” – rather than the Rules of Professional Conduct– gives lawyers insufficient guidance as they conduct the daily practice of law. Some lawyers might believe that the doctrine of zealous advocacy allows or requires departure from RPC 3.3. Others might regard the rule as inviolable, to be rigidly considered without thought about “moral and ethical considerations.” Still a third camp might elect to adhere to the rule through the lens of those “considerations.”
The rules promote more uniform – and thus more just – results because rule-compliant lawyers are all “singing from the same hymn book” and are thus more likely to make decisions in line with professional norms. Lawyers who adhere to the zealous advocacy doctrine run the risk of making decisions not informed by the Rules of Professional Conduct. Decision-making based on personally held “moral and ethical considerations” – as Freedman urged – risks scattershot outcomes driven by each lawyer’s own sense of what is moral and ethical. And that’s like a baseball game where the right-field foul line shifts at the discretion of the hitter.
The Danger of Zealous Advocacy: Need for ‘Client Protection’
The danger of the zealous advocacy doctrine is the risk that it may be perceived as invitation to lawless or unethical advocacy, a perception that undermines the standing of the legal profession. “Since time immemorial slick gamesmanship has often been the bane of the legal profession, and anecdotal versions of shifty lawyering still threaten to bring the profession into disrepute.”[lxxiii] The media generally puts lawyers in an unflattering light. “Unfortunately, other than Jack McCoy [the DA in the television series Law and Order], lawyers are today routinely presented in caricature form in popular culture.”[lxxiv] A profession requiring a “lawyer’s fund for client protection” needs to burnish its public image. That clients require state-sponsored “protection” from their lawyers is a chilling notion. The legal profession needs to protect itself by closing the book on the zealous advocacy doctrine.
The Zealous Advocacy Doctrine Lingers: Still Expecting ‘Zealous Advocacy’
Oddly, the zealous advocacy doctrine lives on in New York cases even after its unequivocal elimination from the state’s regulatory scheme governing lawyers. A Westlaw search (conducted in June 2024) for “zealous advocacy” or “zealous representation” produced a total 146 cases. Of that number, 80 cases were decided after the effective date of the Rules of Professional Conduct at a time when the zealous advocacy doctrine was untethered to the current standards of lawyer conduct.
Consider this example of the persistence of the zealous advocacy doctrine in New York courts. The doctrine recently emerged in a trial court’s four-page decision in a high-profile criminal case where the judge, concerned about dilatory conduct by the defense, sought to deter unauthorized motion practice (and other misconduct). “This Court emphasizes that it hopes for and fully expects zealous advocacy from counsel as well as spirited contribution from witnesses and parties alike. Nonetheless, the Court expects that the line between zealous advocacy and willful disregard of its orders will not be crossed.”[lxxv]
Such routine references to the zealous advocacy doctrine make it seem that the doctrine continues to enjoy the imprimatur of New York bar regulators, as it did before promulgation of the Rules of Professional Conduct in 2009. References to the doctrine draw the bar’s attention away from the detailed regulatory regime imposed by the joint committee – and explained in the NYSBA Comments – and toward an amorphous idea born in England during a contest for the crown.
Conclusion: ‘Hyperbolic Nonsense’
At a time when the rule of law is threatened, it makes sense for the bench and bar to focus on the New York Rules of Professional Conduct and avoid reference to a doctrine that is not recognized by standards of attorney conduct in this state.
Brougham’s claimed license to ignore every interest except the interest of the client flies in the face of reality: lawyers work in the justice system and they also work for the justice system. Notwithstanding the fame and respect Brougham earned as a result of Queen Caroline’s trial, he has been condemned for uttering “hyperbolic nonsense” during his speech on behalf of the queen.[lxxvi]
Freedman’s claimed license to lie to the court when the circumstances demand ignores the need to make honest communications the coin of the realm, one that rejects the lie as legal tender even when packaged as zealous advocacy.[lxxvii]
Both Brougham and Freedman were eminent lawyers, well known, supremely accomplished and hugely admired. Their pioneering theories have stimulated much scholarly debate. But, as it relates to zeal in advocacy as a model for lawyering, they were wrong.
Brad Rudin, a former prosecutor and defense lawyer, is retired from the practice of law. He and Betsy Hutchings are alums of the New York City Legal Aid Society and have previously published articles on New York legal ethics. Opinions are solely those of the authors and do not reflect that of NYSBA or its leadership. This article appears in a current issue of the New York Criminal Justice Section Reporter, the publication of the Criminal Justice Section. For more information, please visit
[i] Nix v. Whiteside, 475 U.S. 157, 166 (1986).
[ii] 7A Corpus Juris Secundum, Attorney & Client § 344, May 2024 update.
[iii] See Rule 1.1[a]), and act with reasonable diligence in representing a client, (see Rule 1.3[a]).
[iv] 7 Corpus Juris Secundum, Attorney & Client § 80, May 2024 Update (“Representation of clients; limits of zealous advocacy”).
[v] S. Krane and D. Lewis, In With the Rules, Out With the Code, 81(5) NYSBA Journal 24, 26 (June 2009).
[vi] Id.
[vii] William Wernz, Does Professionalism Literature Idealize the Past and Overate Civility? Is Zeal a Vice or Cardinal Virtue? 13 No. 1 Professional Lawyer 1, 7 (Fall 2001).
[viii] Restatement (Third) of the Law Governing Lawyers, §16 (2000), Comment [d], last updated June 2024.
[ix] J. Kerper and G. Stuart, Rambo Bites the Dust: Current Trends in Deposition Ethics, 22 Journal of the Legal Profession 103, 107 (Spring 1998).
[x] D. Ciolino, Harmonizing Legal Ethics With Advocacy Norms, 36 Georgetown Journal Legal Ethics 199, FN 202 (Spring 2023); see also E. Keyes, Zealous Advocacy: Pushing Against the Borders in Immigration Litigation, 45 Seton Hall Law Review 475, 483 (2015) (“One approach holds zealous duty to the client as the primary duty, one that is only secondarily tempered by duties to the court or legal system generally (hereinafter called the ‘zealous advocate’ approach)”).
[xi] J. Karr and J. Schultz, The New AI: The Legal and Ethical Implications of Chat GPT and Other Emerging Technologies, 92 Fordham Law Review 1867, 1883 (April 2024) (client-centered lawyering emphasizes “the importance of ensuring client agency in decision making”), see also, “Zealous Advocacy: Pushing Against the Borders in Immigration Litigation,” at 491, see note 8, above, for the full citation (Noting that scholars “have recognized zeal as a component of client-centered lawyering”).
[xii] R. Goldsmith, Is it Possible To Be an Ethical Public Defender? 44 New York University Review of Law and Social Change 13, 21 (2019); see also M. Berrelez, J. Greene, and B. Leach, Disappearing Dilemmas: Judicial Construction of Ethical Choice as Strategic Behavior in the Criminal Defense Context, 23 Yale Law and Policy Review 225, 229 (Winter 2005).
[xiii] A. Perlman, Moving Beyond Zeal in the Rule Making Process: A Reply to Professor Monroe Freedman, 14 George Mason Law Review 185, 187 (Fall 2006).
[xiv] M. Freedman, Henry Lord Brougham and Zeal, 34 Hofstra Law Review 1319 (Summer 2006) (emphasis as in the original; internal punctuation and citations omitted).
[xv] “The Trial of Queen Caroline,” April 8, 2015, https://blogs.bl.uk.
[xvi] Id.
[xvii] L. Vilardo and V. Doyle, Where Did the Zeal Go? 38(No.1) Litigation [ABA] 53, 54 Fall 2011.
[xviii] Brougham, Defence of Her Majesty, Oct. 3, 1820, Historic Hansard, UK Parliament, https://api.parliament.uk/historic-hansard/lords/1820/oct/03/defence-of-her-majesty; last visited June 10, 2024.
[xix] Id.
[xx] M. Freedman, Henry Lord Brougham and Resolute Lawyering, 37 Advocate’s Quarterly 403, 404-405 (Thomson Reuters Canada).
[xxi] Id. at 405.
[xxii] Advocate’s Quarterly at 406, brackets in original, see note 18, above, for full citation.
[xxiii] L. Villardo and V. Doyle, Where Did the Zeal Go? 38 No. 1 Litigation 53, 56 Fall 2011.
[xxiv] M. Ariens, Brougham’s Ghost, 35 Northern Illinois University Law Review 263, 265 (Spring 2015).
[xxv] Id. at 283.
[xxvi] Id.
[xxvii] Id.
[xxviii] C. Andrews, The Lawyer’s Oath: Both Ancient and Modern, 22 Georgetown Journal of Legal Ethics 3, 33, Winter 2009 (parenthesis in original).
[xxix] The President, the Directors and Company of the Third Great Western Turnpike Road Company v. Loomis, 32 NY 127, 133 (1865).
[xxx] Id. at 133.
[xxxi] Id.
[xxxii] Id.
[xxxiii] MacFarland’s Trial, 8 Abb. Pr. N.S. 57 (New York Court of General Sessions 1870).
[xxxiv] Id. at 87.
[xxxv] Id.
[xxxvi] Id.
[xxxvii] Brougham’s Ghost, supra, at 295, see note 22, above, for full citation.
[xxxviii] J. Altman, Considering the A.B.A.’s 1908 Canons of Ethics, 71 Fordham Law Review 2395, 2399 (2003).
[xxxix] Id. at 2403.
[xl] American Bar Association, Final Report of the Committee on Code of Professional Ethics, Canon 15, 1908, 1908 Canons of Professional Ethics (americanbar.org), last visited 6/15/2024.
[xli] Id.
[xlii] American Bar Association, 1908 Canons of Ethics, Canon 15.
[xliii] Brougham’s Ghost at 309 (the Canons captured the ideal put forward by Brougham), see note 22, above, for full citation.
[xliv] M. Freedman, The Kutak Model Rules v. The American Lawyer’s Code of Conduct, 26 Villanova Law Review 1165 (1980-1981).
[xlv] A. Bernstein, The Zeal Shortage, 34 Hofstra Law Review 1165, 1167 (Spring 2006).
[xlvi] Id.
[xlvii] See M. Ariens, The Agony of Modern Legal Ethics, 1970-1985, 5 St. Mary’s Law Journal of Legal Malpractice and Ethics 134, 178-183 (2014) (discussing the ABA’s abandonment of the Code).
[xlviii] P. Saunders, Whatever Happened to Zealous Advocacy? New York Law Journal, March 11, 2011, also available at 3272850_1.pdf (cravath.com).
[xlix] McKinney’s Statutes § 74 (“. . . [T]he failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended.”).
[l] M. Freedman, In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, 34 Hofstra Law Review 771, 772 (Spring 2006).
[li] Id. at 772.
[lii] F. Zacharias, Fitting Lying to the Court into the Central Moral Tradition of Lawyering, 8 Case Western Reserve Law Review 491, 492 (Winter 2008).
[liii] Id. at 505.
[liv] S. Gillers, Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma Is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra Law Review 821, 822 (Spring 2006).
[lv] D. Lundberg, Monroe Freedman (1928-2015): The Passing of a Legal Ethics Giant, 58 Res Gestae 10 (April 2015).
[lvi] In Praise of Overzealous Representation, at 772, see note 48 for full citation.
[lvii] Id.
[lviii] Id.
[lix] Id.
[lx] Id. at 773.
[lxi] Simon’s New York Rules of Professional Conduct Annotated, 3.3:3 [Simon’s], Westlaw update July 2023.
[lxii] RPC 1.6 [b][6].
[lxiii] Simon’s 1.6:92.
[lxiv] Simon’s 3.3:34 [emphasis in the original].
[lxv] Balter v. Regan, 63 NY2d 630, 631 (1984).
[lxvi] Id.
[lxvii] Matter of Rankin, 78 Misc3d 337, 345 (Sup. Ct. Kings Co. 2023); see also Brostoff v. Berkman, 79 NY2d 938 (1992); Clegg v. Rounds, 222 AD3d 112 (3d Dept. 2023) (both citing Balter).
[lxviii] Balter v. Regan, 63 NY2d 630, 631 (1984).
[lxix] In Praise of Overzealous Representation at 774, see note 48, above, for full citation.
[lxx] Id.
[lxxi] Id. at 774.
[lxxii] Simon’s, 1 Analysis.
[lxxiii] Kevin Anthony Reilly, McKinney’s Practice Commentaries, RPC 3.1.
[lxxiv] D. Cummins, Lessons From Lawyer Caricatures, 31 Pennsylvania Lawyer 48, 49 (February 2009).
[lxxv] People v. Trump, 2024 WL 1788059, at *4 (Sup. Ct. N.Y. Co. 2024).
[lxxvi] R. Lawry, The Central Moral Tradition of Lawyering, 19 Hofstra Law Review 311, 319 (Winter 1990).
[lxxvii] See Matter of John Charles Eastman, State Bar Court of California, Case No. SBC-23-0-30029, Decision and Order of Involuntary Inactive Enrollment, March 27, 2024 at 90 (“lies cannot be justified as zealous advocacy”).
