Litigators, which would you rather be: a “zealous advocate” for your client? Or one who is “conscientious and ardent” is pursuit of the client’s interests?

Most litigators, we suspect, would choose the latter description today. It fairly implies that litigators may, in their pursuit of the client’s interest, be required to balance other important considerations. These include the duty of candor toward the court, as well as the somewhat aspirational duty to treat opponents, witnesses, and others in the justice system, in a civil and professional manner.

Some legal experts believe that the continued use of the word “zealous” in professional ethics codes is holding back progress toward a fairer civil justice system. They worry that language in ethics codes calling for “zealous” advocacy is being cited as a get-out-of-jail-free card for ethical transgressions.

This isn’t to say that litigators don’t wear the mantle “zealous advocate” with pride. They do. The principle that everyone is entitled to a zealous advocate is deeply engrained in the U.S. legal system. But lawyers are also responsible for the trustworthiness of the legal system. And this responsibility can on occasion compete with the need for zealous advocacy.

Additionally, “zealous,” as a description of anyone – lawyer or nonlawyer – hasn’t aged well as a matter of English usage. Nobody wants to be called a zealot. Increasingly, it suggests an unreasonable, inflexible, and fanatical attitude toward litigation that is inconsistent with evolving professional norms. And some litigators invoke “zealous advocacy” as an excuse to engage in unethical conduct.

In his article Eight Traits of Great Trial Lawyers, federal district court judge Mark W. Bennett advocated for reasonableness – not zealousness – as the mark of a great trial lawyer. Some legal experts believe that the continued use of the word “zealous” in professional ethics codes is holding back progress toward a fairer civil justice system. They worry that language in ethics codes calling for “zealous” advocacy is being cited as a get-out-of-jail-free card for ethical transgressions.

States Reconsider Calls for “Zealous” Advocacy

Thirty-nine jurisdictions across the United States use the word “zealous” or a close variant to describe a lawyer’s duty to advocate on behalf of the client. The American Bar Association’s Model Rules of Professional Conduct, on which most state legal ethics codes are based, describes the lawyer’s obligation in its preamble:

As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.

Eleven jurisdictions have chosen to go a different direction, softening former demands for “zealous” advocacy from litigators in favor of milder definitions that align with growing calls for professionalism and civility in professional life. In recent years, Arizona, California, Indiana, Maine, Ohio, and Washington have all removed the word “zealous” or its variants from their professional ethics codes. Legal ethics codes in Louisiana, Montana, Nevada, and Oregon do not use the word “zealous” either – however, it’s unclear whether the term was ever present in their rules.

Washington state is a good example of these reformers’ views. In 2006, the Washington Supreme Court substituted the phrase “conscientious and ardent” advocacy for “zealous” advocacy in its rules of professional conduct. Similarly, in 2002, a Maine state ethics task force recommended dropping the word “zeal” from comments in the legal ethics code because, it said, the word had been frequently used to justify inappropriate behavior.

Florida Wants “Committed” Advocates

Now it appears Florida is poised to become the latest state to drop an explicit call for “zealous” advocacy from its legal ethics code. According to a January 2024 submission to the Florida Supreme Court from Florida state bar legal ethics experts, the term “zeal” and its variants are too-often associated with negative extremist behavior and character. The group recommended deletion of the word “zealously” and the addition of the phrase “commitment and dedication to the interests of the client” in the state’s lawyer ethics code.

“During the course of our research, zeal especially in today’s vernacular, has a generally negative connotation and may be equated to someone who goes to extremes, which is not something that we want to aspire to in our Rules,” the group wrote. “We propose that any word which can be used as justification for unprofessional behavior should not be in our Rules which are intended to reflect our best practices.”

The Florida Supreme Court has yet to act on the proposed ethics revisions, though it could do so soon. Just last week, the court hinted that it has no patience for attorneys who defend accusations of unethical behavior with the claim that they are merely providing zealous advocacy for their clients.

In Florida Bar v. Schwartz, No. SC2019-0983 (Fla., Jan. 18, 2024), the court remarked that an attorney had engaged in “increasingly inappropriate conduct under the guise of zealous representation.” Entering an order of disbarment for several ethical transgressions, the court said that the ethical requirement to provide “zealous representation” is not “a sword to wield as an excuse to otherwise engage in misconduct.”

We’ve already reported that professionalism, as an ideal and in practice, is rising within the legal profession. Depositions are, fortunately, an infrequent source of unprofessional conduct (in fact, the decision to videotape a deposition has been shown to be a potent weapon against incivility and unprofessional conduct). Actions by state bar regulators in Florida and elsewhere to remove “zealous” as a professional ideal promise to further improve the experience of everyone involved in discovery depositions.