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f/k/a archives . . . real opinions & real haiku

July 19, 2003

Unzealous Weekend Advocacy

Filed under: pre-06-2006 — David Giacalone @ 4:38 pm

Some Saturday Snippets: I’m going to try to be pithy on this fine summer weekend, covering a couple of topics with relative brevity, so that we can all get serious about relaxation.

Just Right? Please use our “Suggestions” Box to let me know whether the lengthy discussion ethicalEsq? usually gives to topics covered here is too much, too little or just about right.

Honorable Optimism: In a posting on July 17,‘s Walter Olson mentioned our treatment last week of Arizona’s word-change from “zealous” to “honorable” in its Rules of Conduct.  Walter is hoping the word change will produce meaningful results, as

Time and again, in our experience, the putative obligation to represent clients in a “zealous” fashion has proved the last resort of the scoundrel litigator and ethical edge-skater.   Yes, in principle there can also arise dangers when lawyers aren’t zealous enough, but no sane observer could imagine that the big problem with American litigation is that lawyers care so much for honor that they aren’t combative enough.”

I’m cautiously optimistic that we’ll see a difference in conduct and attitude, but it will certainly take considerable amounts of CLE, more than a few judicial scoldings, and action or warnings from Bar Counsel, to make it happen.  Please let ethicalEsq? know — with Comments or “Suggestions” — if:

  • your State or jurisdiction has adopted or is contemplating a similar deletion of the zealousness concept.
  • you have come across any good ethics opinions, articles or CLE materials on the proper meaning of zealous advocacy


P.S.  I may not be feeling zealous today, but I am feeling somewhat humble.  A couple days ago I complained about an instance of tax-whining by Eugene Volokh on his Volokh Conspiracy blog, hoping to get a substantive reponse to my arguments against the epidemic of taxophobia (misotaxia?) that has infected so many Americans.  I guess ethicalEsq? doesn’t have the visibility it takes to deserve a reply on the merits (or, were my arguments simply irrefutable?).  The good Professor and I did exchange a couple of friendly email messages (pardon my non-French), but nothing of substance to quote to my visitors.  Similarly, my challenge to Public Citizen to help fight abusive use of contingency fees has received no reply (BIG surpise). 

On weekends at least, humility is good for me, but I don’t want to overdo it.   Which is why I’m grateful to Walter Olson.  There’s nothing like a reference from Overlawyered to bring visitor traffic to a site. Thanks again, Walter, for watching and touting this space.   .

“Diligent Defender” Standards Should Apply to All Law Firms

Filed under: pre-06-2006 — David Giacalone @ 4:05 pm

In ACCD Ethics Opinion 03-01, the American Council of Chief Defenders proclaimed in April that Chief Defenders are ethically required to refuse to accept more cases than their agency can competently handle. As explained in a press release from the National Legal Aid and Defender Association, dated April 14, 2003, after “a comprehensive review of nationwide professional ethical requirements and court rulings,” ACCD declared:

  • A chief public defender is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every case, and
  • Individual attorneys on public defender staffs are also required to refuse additional assignments that would prevent them from providing such competent, diligent quality representation in all their cases.

ethicalEsq believes that private attorneys and law firms should have — more accurately, do havesimilar obligations to refuse to accept new clients when it is unlikely that the client will be provided services that are diligent (attentive, prompt) and competent (thorough, knowledgeable, well-prepared).  To have a lower standard, is unfair to the new client and current clients. The Model Rules of Conduct currently state:

Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.3: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

(Click here to compare the diligence requirements across jurisdictions; and click here to compare the competence requirements across jurisdictions.)

Lawyers, how often have you heard yourself or opposing counsel ask for lengthy adjournments that are contrary to the client’s interests, because of an overload of work?  A solo practitioner in one case I handled a few years ago told the judge that a brief custody trial needed to be postponed a couple of months (into September, despite the parties living in different school districts) because she “had more work than 4 or 5 lawyers could handle.” [She’s a judge now.]   How often has your work or preparation been less than thorough because you simply were handling too many matters?  Our clients deserve better — even if it means accumulating fewer billable hours and less income. Sorry, those are the rules.  If you don’t think so, please explain to your clients why not.  Let us know, too.

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