Many state ethics codes talk about the duty to zealously represent clients, but if that’s the case, where has all the zeal gone? That’s the topic of an intriguing paper by Anita Bernstein entitled The Zeal Shortage that I read about in this post at the Legal Ethics Forum weblog.
Here are some excerpts from the post:
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) […]
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.
According to the post, Professor Bernstein suggests that lawyers may re-discover their zeal in pro bono work. Nothing wrong with that suggestion. But my belief is that if you want to see real ZEAL at work in the legal profession, have lunch with a bunch of solos at a local solosez lunch. Read the many, many solo practice blogs (even more than noted in the link) where the zeal and the passion for practicing law the way it should be or changing the profession leaps right off the screen. Maybe biglaw killed the zeal in our profession, maybe not. But I know that zeal thrives in solos.