On Zeal

We’ll be talking about zeal for the next few days, with Anita Bernstein’s The Zeal Shortage as our focal point.  Here are some thoughts to get us started.

Zeal is hard to define, but for Professor Bernstein it includes “enthusiasm, energy, and benevolent effort,” and is negated by boredom, indifference, and detachment (109).  It is a disposition (an “aspect or attitude”) that, in the context of an agency relation, “makes the agent’s relationship to the principal more focused, fervid, and intense.”  (112)

Professor Bernstein is pro-zeal.  She thinks it ranks with care and loyalty among lawyerly virtues (105), but gets a bad press in legal ethics circles.  People confuse zeal with zealotry, meaning too-aggressive lawyering (110), she thinks, and this is wrong:  Zeal is to zealotry as faith is to fanaticism.  It would not, for example, compel a lawyer to whitewash or justify torture. (113)

So far I am willing to go with Professor Bernstein.  (Though I note that defined this way it would seem to be perfectly cogent to demand zealous judging, a notion that cuts against common usage and the understanding a lot of people have of the judicial role, though Cf John Noonan’s  excellent Persons and Masks of the Law.)  Her article is a nice counterweight to hand-wringing over a lost Arcadia of practice that in all likelihood never existed. (Cf 117)  That is most welcome.

But Professor Bernstein also thinks there is a zeal shortage, in school and in practice, and I do not think that is right.  I will start here and then note a few other points on which I differ from what I see as the thrust of Professor Bernstein’s argument.

As a conceptual matter, it is fine to distinguish zeal from zealotry, and thus to distinguish table-pounding cretins from engaged advocates, but to say there is too little zeal presumes that one knows how much there should be and, in the context of a general discussion of legal ethics, that there is some at least approximate level of zeal that should be displayed by all lawyers.

I do not find this baseline in Professor Bernstein’s article.  I don’t fault her for that, though, because I do not think such a baseline exists.  Zeal can be good or bad.  It can generate both type one errors (excessive identification with clients and a concomitant loss in the ability to provide disinterested advice) and type two (excessive detachment leading to misapprehension of a client’s interests, or to incompetence).

As a disposition, zeal necessarily must fit with the general personality traits of individual lawyers.  Some lawyers are too timid, others too boisterous.  Some have too little confidence in their skills, others too much.  Different degrees of engagement with different types of clients will produce different interactions with different personality types.  I therefore doubt there is anything generalizable to say about dispositions among people who share only a license.  That an M&A partner at Wachtell and a PD in Bakersfield are both “lawyers” says only that the term conceals more than it reveals.

At  a practical level, assuming one could derive the ideal zeal baseline, I doubt there is too little of it in practice.  If I can be forgiven for gross anecdotalism, most lawyers I know find a way to construct a narrative for their matters that allows them to engage with the matter to a reasonable extent.  Defense attorneys may decide they are upholding rights as against overreaching and overconfident prosecutors; civil litigators tell different stories.  I suspect the associates at Sullivan & Cromwell who have lived Microsoft their whole lives have deeply internalized a free-market frame for what they are doing.  (Me, too.) Transactional lawyers may be fully satisfied with solving intricate problems.

This may not be the level of zeal Professor Bernstein favors, but to me it seems adequate for most practical purposes. One can find a matter boring and repetitive and still bring to it energy and care.  One can find a matter exciting and engaging and, precisely because of that excitement and engagement, can make mistakes that harm clients. 

What is needed is a fit between an individual lawyer’s temperament and the types of problems he or she works on. We can’t teach people what that fit is, and neither can the ABA.  We can tell them it is important to figure out, but they have to figure it out for themselves.

So while I agree that there is a lot of boredom and tedium in practice, and that this can lead to bored and disengaged people (120-21), I do not think boredom evinces a lack of zeal in any sense relevant to careful lawyering. Just as zeal does not imply illegality, boredom does not imply incompetence. 

I would also note that, even purely at the level of disposition, sympathetic engagement with a client can be a double-edged sword.  If one keeps representing factually guilty violent offenders, for example, who lose over and over again, it is probably a good idea not to get too bound up in their circumstances, because the high probability of recurring defeat (and concomitant harm to clients and their families) could lead to depression and burnout every bit as easily as excessive detachment. 

Another double-edge to zeal is that the sort of framing that allows one to view the factually guilty rapist as a victim of coercive interrogation practice can lead to practice that is socially suboptimal even if optimal for the individual case.  Novel theories of medical malpractice liability can lead to defensive medical practices that make people worse off.  Law reform efforts can hurt those they seek to help.  (On the issue generally, see Judge Posner's assessment of Justice Brennan--111 Harv. L. Rev. 9 (1997).)  It may be that one can argue that social effects are not a lawyer's problem--only the case is--but that argument needs to be made on its own.  It is not entailed by zeal. 

As to legal education, although I think it is right that there is something of an inverse relation between length of practice experience and eliteness of school (114), I do not see an inverse relation between traditional methods of education and zeal.  As to scholarship, a very high fraction of work is fairly explicitly advocacy scholarship. Neutrality is not our problem.

We do have a normative preference for a higher ratio of analysis to emotion on any given question than our students bring us, but as I read Professor Bernstein the ability to analyze all sides of a question disinterestedly is not inconsistent with zeal.  One can engage with a flawed side, but it is strategically important to spot the flaws.  If our students came to us as windowless Leibnizian monads, we probably would emphasize the role of affect in reason.  Our problem is the reverse, so we do the reverse.

I also do not see a correlation between zeal and pro bono which Professor Bernstein conjectures might exist. (121)  Indeed, I find the pro bono discussion in tension with the discussion of zeal as a sympathetic disposition.

People like different things.  If antitrust or patent litigation is what excites you, then what commonly counts as pro bono might not.  There is no point in pretending that people will suddenly find habitability disputes or collection disputes interesting if what really fires them up is prosecuting bioscience patents, and certainly not just because some combination of the ABA and the academy tells them they should care more. Lawyers are busy, and I don’t blame anyone for choosing to spend the few spare hours they have with family or in some other non-law manner.

So if one is pro-zeal, I would think one would favor lawyers pursuing their interests rather than someone else’s.  True sentiment can’t be forced; people should do what they like.  If that means representing poor people, more power to them.  If not, there is nothing wrong with that.  A license to practice law is not a mandate to adopt the ABA’s preferences, or those of any segment of the academy.  We should be worried if it ever becomes one.

But I don't want to end on a down note, because I enjoyed the article and welcome a chance to talk about practice at a more practical level.  We are in a service business, as our students will be.  The sympathetic engagement Professor Bernstein discusses is an important part of that business.

DM

Comments

[John Steele]

As I noted before, I see zeal as a virtue and as part of loyalty. But I consider zeal to be part of the aspirational, unenforceable aspects of the rules. Zeal is too vague and soft to be invoked in enforcement actions -- which probably why we capture aspects of zeal with more concrete terms such as "diligence" and "conflicts" and "abide by the client's choice of objectives."

As with any virtue, there can be an excess or a deficit of zeal. I see a deficit in many places, but most critically in parts of the profession that have been coopted by bureaucracy or the market that have been reduced to mill practice by thinning margins. The studies of franchised law firms showed a similar trend, where the lawyers pushed clients into buying pre-existing products and discouraging custom lawyer that might have benefited the client.

[Deborah Cantrell]

I, too, thought Bernstein’s piece was wonderfully engaging and engaged. However, I kept thinking throughout about the connection between zeal and cognitive dissonance. In particular, Bernstein suggests that zeal does not cause a lawyer to be unable to criticize her client’s objectives (see Bernstein’s discussion of the Torture Memos). It could, though, increase the amount of cognitive dissonance a lawyer feels and lead a lawyer to reassess the merits of her client’s case/cause. As Duffy Graham has shown in his book, The Consciousness of the Litigator, the lawyer usually reassesses in favor of her client’s stated position. Thus, if cognitive dissonance is in play, increased partisanship and passion may mean that a lawyer is more likely to unquestioningly push the client’s agenda forward rather than give the client more well-rounded advice. Cognitive dissonance may not encourage the lawyer to imagine the “potential adversary,” but may instead encourage the lawyer to be blind to anything but the client.

[Monroe H. Freedman]

In view of the discussion of Anita’s splendid article on Zeal, and the prominence of zeal in my exchange on Inadvertent Disclosure with Professor Perlman, I would like to add a brief comment on the subject. For anyone who might be interested in a fuller discussion, please see Freedman & Smith, Understanding Lawyers’ Ethics, Ch. 4 (“Zealous Representation: The Pervasive Ethic”), pp. 71-127 (3d ed., 2004). See also, Freedman, “In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct,” forthcoming in the Hofstra L. Rev., and currently available on SSRN.
Adapting the 1908 Canons of Professional Ethics, I define zeal as the lawyer’s obligation to give entire devotion to the interests of the client, warm dedication in the maintenance and defense of the client’s rights, and the exertion of the lawyer’s utmost learning and ability. This ethic of zeal is a “traditional aspiration” that was already established in Abraham Lincoln’s day, and zeal continues today to be “the fundamental principle of the law of lawyering” and “the dominant standard of lawyerly excellence.”
This does not mean, however, that zeal defines my philosophy of lawyers’ ethics. On the contrary, although zeal pervades and gives vitality to other core obligations, like client autonomy and lawyer-client trust and confidence, the foundation of my systemic ethical view is our constitutionalized adversary system. See ULE, Ch. 2.
Also, I believe that a lawyer’s choice of clients and causes is a moral decision. An important aspect of that moral decision is a recognition of the lawyer’s obligation – once she has chosen to commit herself – to represent that client and/or cause with zeal. See, e.g., my debate with Mike Tigar on this issue, which is reproduced as App. B of ULE (Freedman, “Must You Be the Devil’s Advocate?”; Tigar, “Setting the Record Straight on My Defense of John Demjanuk”; and Freedman, “The Morality of Lawyering.”)
In addition, although I believe that the client’s autonomy is fundamental, I have long argued that the client’s decisions should be informed by the lawyer’s moral counseling. See, e.g., ULE, Ch. 3 (“The Lawyer’s Virtue and the Client’s Autonomy”).
This dual emphasis on the moral aspects of the lawyer’s role should help to resolve some of Professor McGowan’s understandable concerns with zealous representation.

[Carolyn Elefant]

I haven't read the article, but I think that blogs are reigniting zeal in the profession. You can read blogs on appellate law, securities law and ERISA law, topics which might otherwise be dull to you but the author's zeal shines through.