In Sharper Focus—No More “Zealous Representation” Talk

Back in the day, before Feb 1, 2007 when the Supreme Court of Ohio adopted the Model Rules-based Rules of Professional Conduct, Ohio had a Code of Professional Responsibility, made up of canons, disciplinary rules, and ethical considerations.  DR7-101 was titled “zealous representation of a client.”  All of us of a certain age, or a certain number of years of practice, pretty much automatically cite that as a basic duty of lawyers, so long as the “zealous representation” is “within the bounds of the law.”  Chief Justice O’Connor used the expression when questioning defense counsel in the oral argument of State v. Ramey  on March 20.  But that phrase was banished from the Rules.  The thinking was that language encouraged boorish behavior.

Here’s what the rulebook says about the comparison between the Code and the Rules language.

 “Neither Model Rule 1.3 nor any of the Model Rules on advocacy states a duty of “zealous representation.” The reference to acting “with zeal in advocacy” is deleted from Comment [1] because “zeal” is often invoked as an excuse for unprofessional behavior. Despite the title of Canon 7 of the Ohio Code of Professional Responsibility and the content of EC 7-1, no disciplinary rule requires “zealous” advocacy. Moreover, the disciplinary rules recognize that courtesy and punctuality are not inconsistent with diligent representation [DR 6-101(A)(3)], that a lawyer, where permissible, may exercise discretion to waive or fail to assert a right or position [DR 7-101(B)(1)], and that a lawyer may refuse to aid or participate in conduct the lawyer believes to be unlawful, even though there is some support for an argument that it is lawful [DR 7-101(B)(2)].”

So, no more zealous representation talk. And yet, there is no catchy little replacement phrase. “Competently and diligently” doesn’t quite capture it. (The topic is covered generally under Rule 1.2, Scope of Representation and Allocation of Authority Between Client and Lawyer, and Rule 1.3, dealing with diligence.)   How about borrowing “Con Brio”, from the music world?  


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One Response to In Sharper Focus—No More “Zealous Representation” Talk

  1. What about assiduously or sedulously? I prefer the latter, with its root meaning of “without guile.”

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