definition of zealous representation

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• The Right to Zealous Representation by Your Criminal Lawyer

Not everyone who is convicted of a crime is guilty, and not everyone who receives an acquittal or a dismissal of the charges is innocent. Sometimes a defendant who knows or suspects that they are guilty fears that their lawyer will stop representing them or will not defend them effectively if they believe that they are guilty. This may prevent them from being honest with their lawyer, which in turn hampers the lawyer’s efforts to provide a strategic defense. However, a lawyer has a duty to zealously represent any client, regardless of whether they believe that the client is guilty or innocent. This duty is found in the ABA rules of professional responsibility, which have been adopted or emulated by the bar associations of most states. By providing zealous representation, an attorney makes sure that the authority to decide a defendant’s guilt or innocence stays where it belongs: with the judge or jury.

Lawyers are bound to zealously advocate for all clients, rather than just innocent ones.

The prosecution needs to meet the burden of proving guilt beyond a reasonable doubt. Sometimes its case will fail if it cannot meet this burden, even if it seems more likely than not that the defendant committed the crime. Issues such as the admissibility of evidence or the credibility of witnesses may play a role in the prosecution’s ability to secure a conviction. This is known as the difference between factual guilt and legal guilt.

Understanding the Duties of the Lawyer

A lawyer is not a detective or investigator. Their job consists of crafting the strongest possible argument for the client under the circumstances, rather than determining how events actually unfolded. They cannot lie by claiming that the defendant is innocent if they believe that they are guilty or by saying that the defendant did something that they know that the defendant did not do. However, they can attack the prosecution’s proof and theory of the case, arguing that the prosecution has not presented enough evidence to prove every element of the crime.

A lawyer’s duty may be best understood as the duty to defend against legal guilt, rather than factual guilt. This means that a good lawyer will focus on whether the prosecution has enough evidence to prove the elements of the crime charged and not necessarily on whether their client actually committed the crime.

Sometimes a criminal defense attorney will advise their client that they should admit their guilt as part of a strategy to receive more lenient penalties. If the client does not accept this suggestion, the lawyer is constitutionally forbidden from admitting the client’s guilt. The U.S. Supreme Court has ruled that this decision is such a fundamental part of a criminal defendant’s case that the lawyer cannot make the decision for them.

Even if a defendant believes that they committed a crime, they may not understand the law well enough to make this judgment. In other cases, a defendant may “admit” that they committed a crime in an effort to protect someone else, when they did not actually commit it. There also may be a defense that would excuse or justify conduct that would normally be criminal, and the defendant may not be aware of this defense. Thus, most criminal defense lawyers will not place much weight on a client’s claim that they committed a crime. They also generally will not ask a client directly whether they committed the crime, preferring to focus on the legal aspects of the case instead.

Last reviewed October 2023

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What does “zealous advocacy” mean in modern legal practice?

• Jennifer Anderson
• November 14, 2022

The idea of zealous advocacy, which is evolving in the modern era, has been around for just over 200 years.

The concept is thought to have originated with a British barrister, Henry Lord Brougham . In 1820, he represented Queen Caroline who, at the time, was charged with adultery. As part of his defense, Lord Brougham threatened to disclose the secret marriage of Queen Caroline’s husband, King George IV.

The notion of exposing the king was beyond scandalous, but Lord Brougham saw no problem with it, famously proclaiming :

An advocate by the sacred duty which he owes 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 and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate should unhappily be to involve his country in confusion for his client’s protection.

As the first American codes of ethics were drafted in the ensuing decades, this quote is thought to have been the forebearer of the canons requiring a duty of “zealous representation” by a lawyer.

In fact, the comments to ABA Model Rule of Professional Responsibility 1.3 still require “zeal in advocacy.”

Many state codes of professional conduct, however, have completely removed the word “zeal” and instead require a simple duty of diligence.

So, what’s the problem with zealous advocacy today? Perhaps the more important question is whether zealous representation is still required at all. And if so, what does it mean? This article will explore those concepts.

What’s wrong with zeal?

Lawyers are a competitive bunch. Every day, they’re competing to sign clients, win court cases, and negotiate favorable deals.

This leads many lawyers to practice with the mantra of “winning at all costs.”

The problem with this ideal is that it can quickly turn zealous representation into overzealous representation . In fact, in removing the concept of zeal from its rules of professional conduct, the State of Ohio reasoned that “‘zeal’ is often invoked as an excuse for unprofessional behavior .”

This sort of overzealous representation comes in many forms, but usually involves a lawyer whose conduct straddles the line between ethical and unethical.

It might be the practice of producing 300,000 documents when only 35 are responsive to document requests – solely for the purpose of burying information harmful to the client’s case.

Or when a corporate attorney practices can-do lawyering  – essentially giving advice that the client wants to hear rather than advice reflecting the most realistic potential legal outcomes.

Or when a defense attorney gets into a physical altercation with an investigator for the District Attorney’s office.

Or when an attorney simply makes threats of physical violence against an opponent.

While these kinds of tactics may not violate the letter of any of the model rules, they certainly do a disservice to clients, litigants, courts, and the practice as a whole. Perhaps not surprisingly, through the years, many lawyers have become a little too zealous so that the boundaries between ethical and unethical became a little too blurred.

In the words of one commentator, “the legal profession is the last bastion of unfettered, unapologetic nastiness, proudly flying the flag of zealous client representation .”

As a direct or indirect consequence of this sort of slippery-slope lawyering, states started removing the requirement of “zeal” from their professional conduct codes.

Has zealous representation really disappeared as a duty?

As noted above, many states like California have removed the phrase “zeal” from its Code of Professional Conduct, opting instead for the aforementioned duty of diligence.

Nonetheless, California courts seem to believe in the concept of zeal. In fact, that state’s Supreme Court has recognized that “[z]ealous advocacy in pursuit of convictions forms an essential part of the prosecutor’s proper duties.”

There’s no reason to believe other types of lawyers should act with any lesser standard of advocacy.

Other states, like Arizona, have gone one step farther.

Not only did that state remove “zeal” from its code of professional conduct, it has also enacted other rules demanding respectful conduct from attorneys. For example, Arizona Ethics Rule 4.4 requires that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden any other person.”

Most other states fall somewhere in the middle.

So, what does all this mean for the practice of law today?

How to zealously represent clients in modern practice

Ultimately, modern legal practice seems to demand zealous, yet highly ethical , representation.

Perhaps the Preamble to the ABA’s Model Rules of Professional Conduct describes the modern duty best. It says that a lawyer has an obligation to “zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”

Stated another way, “be a great lawyer for your clients without being a jerk.” Seems like an easy enough mandate, don’t you think?

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When Does Zealous Advocacy Put Lawyers at Risk of a Defamation Suit?

By Jeremy N. Boeder

One of the bedrock principles upon which the American civil and criminal justice system is founded is the notion that the truth will reveal itself through the adversarial exploits of two opposing attorneys vigorously and zealously advocating for their respective clients’ interests.

Inevitably, then, vigor and zeal will sometimes manifest in the form of an attorney’s defamatory statements about an opposing party. Defamation law has evolved to protect certain statements made by overzealous advocates in an effort to avoid unduly restraining lawyers in their efforts to act with an appropriate level of vigor and zeal.

It is fitting that New Orleans, the site of this country’s grandest celebration of reckless excess and redemption, served as the backdrop for a panel discussion of the competing tension between attorneys’ ethical responsibilities to their clients and their own possible tort exposure.

The program took place April 28 during the Spring 2016 National Legal Malpractice Conference, sponsored by the ABA Standing Committee on Lawyers’ Professional Liability.

Elements of a Defamation Claim

Moderator C. Lawrence Orlansky, of Stone Pigman Walther Wittmann LLC in New Orleans, said that although the elements of the tort differ from state to state, in general there are four elements to a defamation claim:

• a false and defamatory statement;
• communicated to a third party;
• with the requisite degree of fault; and
• causing injury to the plaintiff.

Truth is a universal defense to a defamation claim.

Panelist Richard A. Simpson, of Wiley Rein LLP in Washington, illustrated this point via the example of a recent jury verdict in a defamation lawsuit filed in Fulton County, Ga.

The suit ensued after a lawyer followed the filing of a lawsuit against a natural gas provider with a press release in which he stated that his client’s opponent deceived, cheated and misled gas-needy customers, including the lawyer’s clients, by taking advantage of apparent gas shortages in the aftermath of Hurricane Katrina.

The gas provider won summary judgment in the underlying litigation, and then sued opposing counsel for defamation. The jury rendered a verdict in favor of the lawyer, apparently concluding that although the gas provider was not liable to the lawyer’s clients, the lawyer’s statements about the gas provider were true.

Different degrees of fault are required depending on the jurisdiction and the nature of the defamation claim.

For instance, although an ordinary plaintiff typically may pursue a defamation claim based on the utterer’s simple negligence, a public figure must prove that the allegedly defamatory statement was made with actual malice, which requires knowledge or reckless disregard of the falsity of the statement.

Although one generally may not recover in defamation without sustaining an injury, some jurisdictions permit a plaintiff to recover absent any damages under a theory of defamation per se. There is no universal definition of what constitutes defamation per se, though many jurisdictions will consider statements that imply the commission of a crime or one’s lack of chastity, or which tend to injure one’s trade or business, to be defamation per se.

Opinion or Fact?

As a general proposition, statements of fact may be actionable where statements of opinion may not. However, “just because a statement is one of opinion does not mean it is not actionable,” according to panelist Anne C. Auten, senior claims counsel with Attorneys’ Liability Assurance Society Inc. in Chicago.

This caveat has particular relevance when considering defamation in the litigation context. Auten explained that statements of opinion implying that the speaker has knowledge of undisclosed, defamatory facts may be actionable.

She referenced an opinion in which a court found actionable a law firm’s statements that a local judge was “partial to young men in tight shorts and chiropractors,” because the statement implied that the law firm had particular, nonpublic knowledge of the judge’s proclivities.

Auten, citing a Colorado federal district court decision in Seidl v. Greentree Mortgage Co. , 30 F. Supp. 2d 1292 (D. Colo. 1998), reflected that accusations of fraud might be protected if found to be “rhetorical hyperbole.”

In Seidl , a lawyer representing a mortgage company against claims relating to spam e-mails made accusations of misappropriation and fraud in a demand letter to the opposing party. The court concluded that the accusations were nonactionable rhetorical hyperbole, as reasonable persons would understand the letter to have been a mere step in the litigation process.

Orlansky stressed that attorneys should be hesitant to rely upon a rhetorical hyperbole defense when considering making a statement of the sort at issue in Seidl , as a court could very well conclude that such a statement is one of actionable fact.

An Attorneys’ Best Defense

The absolute litigation privilege provides a strong defense to certain defamation claims based on attorneys’ statements in the context of litigation. The litigation privilege protects otherwise defamatory statements that are “pertinent” to the litigation proceedings.

As Simpson explained, the purpose of the absolute litigation privilege is that attorneys should “feel free to zealously advocate for clients without fear of retribution.” Or, as Orlansky added, it exists because “lawyers should have some degree of comfort regarding what [they] say in pleadings.”

The test to determine whether the absolute litigation privilege applies to statements a lawyer makes in connection with litigation is whether the statements are relevant or pertinent to the proceedings. Orlansky said the tests for relevance and pertinence have been “very broadly defined.” There must be a logical connection between the statement and the litigation.

When applicable, the absolute litigation privilege provides a general bar to any claim of defamation, even those based on maliciously made statements of facts known to be false.

Although the privilege may provide broad protections, it has its limitations. Simpson said the privilege may not apply to statements made in the context of witness interviews, even those relating to ongoing litigation. Courts have reached inconsistent opinions on this issue.

Simpson also said the privilege is unlikely to apply to communications with the media. Many courts have held that sending a complaint to the press is not protected, even though the filing of the complaint would be. When asked by Orlansky whether the answer would change if the press obtained the complaint and asked the attorney to comment, Simpson opined that the privilege would not apply.

Insurance Coverage Implications

Panelist David Rock, an assistant vice president of the North American Claims Group for Allied World Insurance Co. in Farmington, Conn., discussed the insurance coverage implications of defamation claims.

He told attendees that defamation claims “raise all sorts of coverage issues” under legal professional liability policies.

Most such policies cover only claims arising out of “legal services.” Insurers will almost always reserve their rights on the basis that the alleged defamation occurred outside the provision of legal services, but rarely deny on this basis. However, there are obvious instances in which there would be no coverage and a request for defense and indemnification would likely be denied, such as where an attorney makes negative comments about a current or former partner.

Intentional and wrongful acts exclusions are often implicated, but rarely provide a basis for denial.

As Rock explained, in most jurisdictions a defamation claim requires neither malice nor intent. Because the litigation of the defamation claim often does not involve a finding whether the defamatory statement was made with malice or intent, there may be no practical manner by which to determine whether a finding of defamation was based on malicious or intentional conduct.

Although an insurance carrier may seek to intervene in the litigation to request that the jury be asked to make an explicit finding as to intent, this will not necessarily be permitted. Orlansky said the exclusion most likely applies where punitive damages are awarded and the jurisdiction requires malice or intent for such an award.

Rock articulated other fact-specific exclusions, such as the business enterprise exclusion, which would preclude coverage for defamation occurring not in the course of the provision of legal services but in marketing or other business-related activities.

Defamation taking place within the context of a dispute between partners or co-insureds would also likely be subject to an exclusion. Most policies exclude from coverage awards for punitive damages.

Settlement of defamation claims often adds further complexity from the carrier’s perspective.

Defamation claims are often high-profile, emotionally charged matters. Although the carrier may want to settle, the insured attorney may want to litigate the claim to its fruition to defend his or her reputation. The insured attorney has considerable power to control the decision whether to settle by virtue of the insured’s rights under a “consent” clause.

The presence of counterclaims may further complicate matters for the insurer in such situations. Although the insurer may want to take the rather drastic step of invoking a “hammer clause” in the policy and overriding its insured’s refusal to offer consent, the presence of a counterclaim may have the effect of preventing the carrier from dictating whether to settle because the insured’s own claim is implicated in any such settlement negotiations.

Be Cautious!

The panelists arrived at a common closing point: Attorneys should be careful about what they say.

Auten reminded the audience that couching as statement with the language “in my opinion” does not necessarily provide protection from a defamation claim, even in the litigation context. Rock emphasized the importance of reading and understanding your policies of insurance, as well as those of your clients.

Simpson acknowledged that “sometimes in representing a client you have to have strongly worded pleadings or you have to go to the press.” He added, however, that “if you are acting prudently, as good lawyers do, defamation is not a huge risk.”

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A lawyer owes his or her client a duty of zealous and competent representation.

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Definition of zealous

Did you know.

Zealous vs. Jealous

Zealous and jealous share not just a rhyme, but an etymology. Both words ultimately come from the Latin zelus “jealousy,” and in the past their meanings were somewhat closer to each other than they are today. In the 16th and 17th centuries, zealous occasionally was used in biblical writing to refer to a quality of apprehensiveness or jealousy of another. By the 18th century, however, it had completely diverged in meaning from jealous , signifying “warmly engaged or ardent on behalf of someone or something.” Today, zealous often carries a connotation of excessive feeling: it typically means “fiercely partisan” or “uncompromisingly enthusiastic.”

Examples of zealous in a Sentence

These examples are programmatically compiled from various online sources to illustrate current usage of the word 'zealous.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

15th century, in the meaning defined above

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“Zealous.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/zealous. Accessed 17 Apr. 2024.

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California Lawyers Association

Beyond the oath: recommendations for improving civility.

 November 29, 2021 

Justice Brian S. Currey, Chair  Heather Rosing, Vice Chair  Brandon Stallings, Vice Chair  California Civility Task Force 

Re: Beyond the Oath: Recommendations for Improving Civility 

View the PDF version here .

 Dear Justice Currey, Ms. Rosing, and Mr. Stallings: 

We submit these comments on behalf of the California Lawyers Association (CLA) in response to the Initial Report of the California Civility Task Force. We commend the tremendous work of the Task Force and share a commitment to address and curb incivility in the legal profession. We have the following comments on the four recommendations in the Initial Report. 

1. Require one hour of MCLE devoted to civility training, included in the total number of MCLE hours currently required. Approved civility MCLE programs should highlight the link between bias and incivility and urge lawyers to eliminate bias-driven incivility. 

CLA supports this recommendation. 

2. Provide training to judges on the need to both curtail incivility and model civility, both inside and outside the courtroom, explaining the tools available to them to do so. 

3. Enact meaningful changes to State Bar disciplinary rules, prohibiting repeated incivility and clarifying that civility is not inconsistent with zealous representation. 

Although CLA would encourage further exploration of this possibility, and offers all of its resources as part of that process, we have several concerns about this recommendation. 

• Definitional and Related Concerns 

Our first concern surrounds the definition of “incivility.” The current proposal defines “incivility” for purposes of the rules as “discourteous, abusive, harassing, or other significantly unprofessional conduct” and notes that the Task Force is “open to adding further definitional language so lawyers can have clarity about what conduct is and is not prohibited.” 

We agree that clarity and certainty are key considerations, but also caution that creating any definition of “incivility” raises issues that should be considered carefully by all interested stakeholders. Given our complex, evolving, and richly diverse society, manners of communication and the notion of what is “civil” vary by region, time, location, and numerous other factors.1 Views of acceptable norms in one context may not be the same as views of acceptable norms in a different context. What account, if any, will be given in a definition to factors such as race, ethnicity, national origin, gender, sexual orientation, gender identity, gender expression, age, and religion? 

A related concern is the potential impact of the definition – along with complaints and enforcement that would follow – on people of color and women in particular. The Initial Report and the attached material repeatedly mention bias and prejudice with the goal of reducing or eliminating both. We share this goal and do not dispute, as the Interim Report notes, that “young lawyers, women lawyers, lawyers of color, and lawyers from other marginalized groups are disproportionately on the receiving end” of incivility. A civility rule of professional conduct could help address this issue. At the same time, the identical rule could be harmful to and have a disproportionate impact on these same attorneys when used against them by others making claims of incivility based on conduct perceived as “inappropriate” or “too aggressive” or “out of line.”2 In reviewing this proposal, one of our members recently reported on a young, Black, female colleague who was berated by a judge for making the same types of arguments the white, male attorney regularly makes. Although this could certainly have been the result of implicit bias against the attorney, the key point is that identical speech and conduct can be perceived in a different way, depending upon the speaker and actor. Although not the intent, there is a general concern that a civility rule of professional conduct could be used to stifle the voices and advocacy of younger, more diverse attorneys. 

We acknowledge that the stated intent is a rule clarifying that civility is not inconsistent with “zealous representation.” Although this might provide some level of comfort, it does not resolve the definitional concerns. The outer boundaries of “zealous representation” are not set or defined, potentially resulting in additional lack of clarity and certainty in the rule. Stated otherwise, when would the line be crossed from zealous representation (permitted under the rule) into incivility (prohibited by the rule)? 

• First Amendment Concerns 

This proposal would add a Comment to California Rules of Professional Conduct, rule 8.4, stating that a lawyer violates paragraph (d) of that rule “by repeated incivility while engaged in the practice of law or related professional activities.” Current Comment [6] of the same rule states: “This rule does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.” The Interim Report also notes: “We are aware that making incivility a breach of the rules of professional conduct may be controversial in some circles. Some lawyers may have First Amendment concerns. Others may be concerned that a single misstep could land them in hot water with the State Bar. Our proposal should allay both concerns. Our task force members are ardent defenders of the First Amendment and have no interest in deterring lawyers from advocating controversial legal positions.” 

We appreciate and share the view that First Amendment rights must be ardently defended. We expect that any civility rule of professional conduct is less likely to be invoked in the context of advocating controversial legal positions and anticipate that the vast majority of complaints would arise in the context of discovery and other routine out-of-court matters. Notwithstanding the statement in Comment [6] of rule 8.4, we believe crafting (and enforcing) a rule of professional conduct that does not in fact prohibit activities protected by the First Amendment raises very legitimate issues and that further exploration of these issues is needed. 

• Concerns About Use (or Misuse) of the Rule 

We are concerned that a rule of professional conduct could end up being weaponized in the hands of litigants, opposing counsel, business rivals, political rivals, and others. It is relatively easy to file a complaint with the State Bar and trigger an investigation and there is no cost to make the accusation. Although the State Bar investigation is confidential, a complaint that becomes public once disciplinary charges have been filed can, by itself, cause harm. Defending against an accusation can cost a significant amount of money, even for a successful exoneration. 

We also note that the rules of professional conduct are intended to regulate professional conduct of lawyers through discipline. Self-represented litigants are not bound by these same rules. There are many cases with a represented litigant on one side and a self-represented litigant on the other side. What consequence, if any, are there to a self-represented litigant who acts in an uncivil manner? Would the incentives to file a complaint with the State Bar differ between cases where both sides are represented by counsel (and can equally file a complaint, whether initially or in retaliation to the other side’s complaint where both sides claim incivility) and cases where one side is represented but the other is not? 

4. Require all lawyers, not just those who took the oath after the 2014 rule change, to affirm or reaffirm during the annual license renewal process that: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” 

We appreciate your consideration of our comments and look forward to the opportunity to work on proposals to improve civility in the practice of law. 

Sincerely, 

Jeremy M. Evans  President 

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Definition of zealous adjective from the Oxford Advanced American Dictionary

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