Zealous Representation: Not an Option

Max Kennerly asks: Is A Lawyer Ever Required To Present An Argument They Don’t Believe?

The answer to the question is, to any true Scotsman criminal-defense lawyer, “absolutely.” We don’t decide whether our clients go to trial, and we don’t pick the facts. If the second-simplest explanation that accounts for all of the government’s admissible evidence is unbelievable even to us, then (unless trial psychosis helps us out by letting us buy our own bullshit) we must present an argument that we don’t believe to the jury.

But Kennerly contends that the answer is “no.” A lawyer, says he, is never required to present an argument she doesn’t (“they don’t”) believe.

According to Kennerly, a lawyer doesn’t have a duty of zealous advocacy. Why does he say this? Because the ABA Model Rules don’t require zeal1:

The focus of the Rules, then, is on competence, diligence, and communication, not on the degree of “zeal” felt or exercised by the lawyer.

Sometimes law and ethics clash, and DRs (including the MRs, where they are adopted) are law. Sometimes DRs require things that are not ethically required; often they do not require things that are ethically required.

The MRs, however, are not even the state of the law, whether in Texas, where Comment 6 to TDRPC 1.01 says…:

Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.

…or in Pennsylvania, where Charles Thomas practices…:

A PCHA petitioner alleging ineffective assistance of counsel may not be represented by an attorney from the same office as the allegedly ineffective attorney, regardless of the fact that one started working there after the other left. The later attorney, by reason of his association with the same office, still has an appearance of a conflict of interest threatening his duty of zealous advocacy. Pennsylvania v. Wright, 374 A.2d 1272, 1273 (Pa. 1977).

…or in the U.S. generally:

Although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments. Smith v. Robbins, 528 U.S. 259, 278 n.10 (2000).

In a detour, Kennerly confuses zeal with a lack of caution:

That’s how it should be: one of the essential precepts of the law is the recognition that “reasonable minds can differ” on a wide variety of subjects, including on the most effective way to represent a particular client and whether zeal or caution is warranted in a given situation.

While it’s true that a lawyer can choose the approach to his client’s case that will be most effective (and should, according to the law of requisite variety, have a good number of approaches to choose from), he must choose the one that is most effective. That—and not recklessness—is the essence of zealous representation. A lawyer can be zealous and cautious, zealous and audacious, zealous and temperate; zeal is not optional.

If zeal is not optional, then it appears that Kennerly would agree with me that the lawyer must sometimes—when is the best argument for the client—make the argument that he doesn’t believe in. That, at least, is the implication:

…[W]here is the line drawn between arguments that a lawyer must make (to have performed competently) and arguments that they can make (within the bounds of zealous advocacy)?

If zealous advocacy is mandatory, then there is no line between arguments that a lawyer can make within the bounds of zealous advocacy, and arguments that a lawyer must make to have performed competently. They are the same thing.

Kennerly also digresses into IAC law, which sets a very low bar for representation. Any criminal-defense lawyer whose ethics are satisfied by simply providing representation that doesn’t violate Strickland should go defend insurance companies. Or sell shoes.

In the post that prompted Kennerly’s question, I argued that a lawyer whose ethical qualms will not allow him to make a likely argument that might be legal and effective in the client’s case must give the client notice, before the lawyer is hired, of his fussiness. Kennerly would apparently say otherwise, returning again to the Model Rules of which he is overly fond:

First, the Rule draws a distinction between “general strategy” — about which the lawyer is to keep the client informed — and the details of that “trial or negotiation strategy,” which the lawyer “ordinarily will not be expected to describe.” Second, because the Rule specifically mentions that the client must give informed consent to conflicts of interest, the principle of expressio unius est exclusio alterius (“the express mention of one thing excludes all others”) would imply that a conflict of interest is the only situation in which the client is required to be informed of.

Here, Kennerly misses the point entirely.

Even if Kennerly were right that zeal was optional, even if a lawyer had no duty to present an effective and legal defense, if it were the lawyer’s ethical fussiness that prevented him from presenting such a defense there would be a conflict of interest. The lawyer in this situation has an interest in keeping his hands clean, the client has an interest in the lawyer doing everything legal that might keep him out of prison, and the lawyer must (even under the MRs) get the client’s informed consent before proceeding.2

  1. Never trust a lawyer who confuses ethical rules—whether the Model Rules or his state’s disciplinary rules—with ethics. 

  2. The lawyer who, upon reflection, thinks that this might not be a conflict that must be revealed to the client has serious ethical problems, way beyond thinking that the MRs contain the whole of legal ethics. 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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