Why Most Lawyers Do Not Have a Duty to be “Zealous Advocates”

Twice I have heard speakers at my state bar’s annual convention cite to a lawyer’s ethical duty to be a “zealous advocate” when representing a client.  That all lawyers have an ethical duty to be zealous advocates is just something that everyone knows to be factually correct.  Right? Well, not exactly.

The plain fact is that the duty of zealous advocacy has not been a part of the American Bar Association (ABA) Model Rules of Professional Conduct (RPC) for a long time now. The present standard is “reasonable diligence.” And the ABA Model RPC make clear that “diligence” and “zeal,” like water and oil, do not mix. See ABA Annotated Model RPC (3rd ed. 1996) at p.  26 (“Rule 1.3 substitutes reasonable diligence and promptness for zeal.”) citing State v. Richardson, 514 N.W.2d 573 (Minn. Ct. App. 1994)(court holding that “a trial lawyer cannot be a zealot”).

Unfortunately, though, some jurisdictions that have not adopted the ABA Model RPC 1.3 standard have combined the contradictory standards of reasonable diligence and zealousness into one standard. See, e.g., D.C. RPC 1.3 (“[a] lawyer shall represent a client zealously and diligently”). I use the term “unfortunately” as I find it unfortunate – especially from a malpractice standpoint – that some jurisdictions require a lawyer to adhere to the contradictory standards of “diligence” and “zealousness” or “diligent zealousness” (an oxymoron if there ever was one).

For those lawyers who practice in a state that adheres to the ABA Model Rule 1.3 standard, they have a much simpler standard to meet. For Model Rule 1.3 simply requires that a lawyer “act with reasonable diligence and promptness in representing a client.” Yet despite the modest requirements of Model Rule 1.3, some lawyers feel the need to set the practice standard higher (for themselves) by appending zealousness onto Model Rule 1.3. And in my view, one of the main reasons a lawyer does this is to support an over-the-top representation which, in turn, often leads to over-the-top legal bills.

Fortunately, clients and others who pay the clients’ legal bills are protected from lawyers who want to charge for a zealous (i.e., over-the-top) advocacy. This is because courts have consistently held that the client or the person paying the lawyer’s legal bills only are obligated to pay for “reasonable” legal fees and costs. This is so even in a fee shifting case where the person paying attorney’s fees and costs is the adversary.  See Hensley v. Eckerhart, 461 U.S. 424 (1985(holding that time not reasonably billed to one’s client is not billable to one’s adversary).  

In an insurance context where I often work, the attorney’s ethical obligation to only bill reasonable fees and costs mirrors an insurer’s obligation to only pay reasonable fees and costs.  Manuscripted policies notwithstanding, an insurer is not under any contractual obligation to pay for an over-the-top or “Cadillac” type of representation undertaken by a “zealous” advocate.  See, e.g., Southern Maryland Agriculture Assn. v. Bituminous Casualty Corp., 539 F. Supp. 1295, 1306 (D. Md. 1982)(insurer “has obligation to pay the reasonable costs and attorneys fees incurred”). This “reasonableness” standard in billing for fees and costs applies even if the insured’s lawyer is an “independent” counsel.   See, e.g.,Boyd Bros. v. Fireman’s Fund, 729 F.2d 1407 (11th Cir. 1984)(The insurer fulfills its “contractual obligation to the insured by permitting the insured to choose his own counsel and by paying the reasonable fees of that counsel.”). 

So, whenever you hear a lawyer cite to a duty to be a “zealous advocate,” you should do as I do and instinctively put your hand over your wallet.  That is because it is likely this lawyer may be setting you up to engage in some over-the-top advocacy that may wind up costing you plenty.   But just remember that no matter how zealous a lawyer thinks he or she needs to be, at the end of the day, the client or the person paying the lawyer’s legal bills is not obligated to pay for anything other than “reasonable” fees and costs for a lawyer who adhered to the ethical standard of “reasonable diligence and promptness in representing a client.”