Zealous Advocacy

Turns out it’s a self-serving myth.

The link is worth quoting at length:

The actual extent of the supposed duty of zealous advocacy has been the subject of careful scrutiny by the American Law Institute:
The Preamble to the ABA Model Rules of Professional Conduct (1983) . . . and EC 7-1 of the ABA Model Code of Professional Responsibility refer to a lawyer’s duty to act “zealously” for a client. The term sets forth a traditional aspiration, but it should not be misunderstood to suggest that lawyers are legally required to function with a certain emotion or style of litigating, negotiating, or counseling. For legal purposes, the term encompasses the duties of competence and diligence.

If that’s all there is to it, what is the genesis of this non-existent duty? One scholar has traced the history of the phrase back to a comment in a speech to the English Parliament in 1820 by Lord Brougham:

The Restatement view [that the term merely encompasses the duties of competence and diligence] is in line with a more nuanced understanding of the Lord Brougham defense, which was never intended as a maxim of legal ethics. Brougham made his statement in the context of a parliamentary debate, not a judicial proceeding, and the speech was intended as a veiled political threat to King George IV. In any event . . . it can hardly be argued that the Brougham speech describes the prevailing norms of the English Bar in 1820. It certainly has no general applicability.
So that’s it for the role of the zealous advocate: the duties of competence and diligence. And those duties are adequately described in the Colorado Rules. The phrase “zealous advocacy” is full of sound and fury, signifying nothing…The duty of zealous advocacy may be empty of meaning, but it is not without import. Put simply, the duty to be a zealous advocate is the single most common justification used to claim that the duty to the client is paramount, and that a lawyer is therefore justified in minimizing or even ignoring the other duties expressly stated in the Colorado Rules. It is often treated as synonymous with a duty to be ruthless — even dishonest.

The quoted article is from 2005, and notes that the giant jurisdictions of Arizona and Montana had by that time removed the references to “zealous advocacy” from their ethics codes, hoping that Colorado would soon do the same.

This is an important and maybe even interesting discussion.  And a couple of recent posts by some colleagues are fortuitously pertinent.

First, Jeff Gamso quotes Scott Greenfield, in relation to a subject we touched on at roughly the same time, that being the FBI’s recent admission that its hair analysis testimony was all wrong for decades:


Scott Greenfield rightly points out that it didn’t matter that we’ve been screaming about the incompetent/dishonest forensic faux-science for years – and nobody gave a shit.

While we’ve been screaming about this forever, nobody cared. Nobody listened, because we aren’t trusted government officials and it’s just us criminal defense lawyers complaining about stuff, like evidence and constitutional rights, again.

That the FBI admitted it is what stunned the legal community (of which, apparently, criminal defense lawyers are too minor a part to be worthy of recognition), because they are official.  Now the legal community cares. That’s stunning. Us, not so much.

We have often chafed at the same double standard.  It’s hard to describe the sense of frustration – and yet at the same time a kind of curiosity and bewilderment – when the exact same evidence that is deemed not newsworthy or not significant or not credible when a mere lawyer offers it suddenly becomes the holy grail of truth once someone more “official” signs off.  One is tempted to blame journalists and judges and others bitterly for their slavish devotion to faith in the status of the speaker rather than the quality of proof.  We have occasionally succumbed to that temptation ourselves.

But we have also not spared ourselves, or our brethren and colleagues, having described this phenomenon as at least to some degree a self-inflicted wound.

Dear reader!  We can’t get over the serendipity apparently at work here, because just the other day there was an even more pertinent discussion over at SJ.

Let us summarize.  You have a criminal case out of Chicago where the defendant is a cop charged with reckless homicide and the judge renders a judgment of acquittal, at trial, at the close of the prosecution’s case because the defendant was a cop and that would never happen for anyone else because the cop had fired into a crowd and the mens rea didn’t fit the facts.  Commenter Marc R. wonders why the defense didn’t raise that issue pre-trial, and SHG notes in response in his own comment:

Bennett [that is, Mark Bennett – ed.] makes a better point, that had they moved to dismiss before jeopardy attached, the prosecution could simply reindict for murder and it would have been worse.

So there are times you might refrain from bringing a legal issue to the attention of court because your client will be better off if the judge grants relief after jeopardy attaches?  That was one of the issues in a case called United States v. Basurto, 497 F.2d 781 (9th Cir., 1974), where the defendant’s attorney deliberately waited until trial to raise the issue that one of the prosecution’s witnesses had committed perjury before the grand jury.  The perjury had been admitted by the prosecutor and he had communicated that to the defense lawyer shortly after it occurred, well before the trial and well before the time for bringing defense motions.

In other words, the defense attorney gamed the procedure to put the prosecutor and judge in the position that they would have to grant a dismissal because of the admitted perjury, and the prosecution could not proceed again because of double jeopardy.

Did “zealous advocacy” require this gamesmanship?

Before you answer that question, consider the fallout from Basurto, which we have discussed before:

In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury.  It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):

Importance:  In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.

By 1991, though, the DOJ Grand Jury Manual said this:

A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

You see, because of the gamesmanship by the defense attorney in Basurto, the outcome of that case was not well received either by prosecutors – or by a lot of courts:

Although a few subsequent decisions have followed Basurto, see, e.g., United States v. Ciambrone, 601 F.2d 616 (2d Cir. 1979); United States v. Smith, 552 F.2d 257 (8th Cir. 1977); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States v. Goldman, 451 F.Supp. 518 (S.D.N.Y.), aff’d, 573 F.2d 1297 (2d Cir. 1978); United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975), more recent opinions have “not only cut back on the reach of Basurto, but [have] also questioned its continuing validity.” United States v. Cathey, 591 F.2d 268, 271-72 (5th Cir. 1979), citing United States v. Bracy, 566 F.2d 649 (9th Cir. 1977), stay of enforcement denied, 435 U.S. 1301, 98 S.Ct. 1171, 55 L.Ed.2d 489, cert. denied, 439 U.S. 818, 99 S.Ct. 79, 58 L.Ed.2d 109 (1978). Accord, Talamante v. Romero, 620 F.2d 784, 790 n.7 (10th Cir.), cert. denied, 449 U.S. 877, 101 S.Ct. 223, 66 L.Ed.2d 99 (1980). Indeed, a panel of the Ninth Circuit itself noted that prosecutorial misconduct must be “flagrant” to violate due process, a rather strict application of Basurto, if not an entirely new standard. See United States v. Bettencourt, 614 F.2d 214, 216 (9th Cir. 1980), citing United States v. Vargas-Rios, 607 F.2d 831 (9th Cir. 1979), and United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). See also United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir. 1981); United States v. Thompson, 576 F.2d 784, 786 (9th Cir. 1978); United States v. Brown, 562 F.2d 1144, 1149 n.3 (9th Cir. 1977); 8 J. Moore, Federal Practice, ¶ 6.04[2] (2d ed. 1981).

We also doubt the total validity of Basurto and, therefore, decline to follow its broad holding…

So, in that same period in the 1980’s the Department of Justice picked up on the hostility of many jurists to the holding in Basurto, a hostility that was not grounded in a tolerance for the deliberate use of perjury before a grand jury but rather the concern that Basurto’s holding opened an avenue for acquittals by defense lawyer gamesmanship.

But in practice, as we now know, repudiating the holding in Basurto could not help but engender a tolerance for the deliberate use of perjury before grand juries, and anything that is tolerated is fair game for…the “zealous advocate.”

Do prosecutors get to be zealous advocates, too?  In the mind of some members of the criminal defense bar, well, sure:

The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law…And if, having done the foregoing, the jury acquits, then I will take comfort in knowing that I did what I believed the law allowed and required of me.

So here’s the thesis:  the “zealous advocacy” gamesmanship practiced by the defense attorney in Basurto was part of what caused a judicial reaction that propagated an error in the law.  That error was thereupon formally adopted by the Department of Justice and “zealous” prosecutors all over the country.  The error was the belief that the deliberate use of perjury before a grand jury did not violate a defendant’s right to due process of law.

The error then proliferated for decades, causing confusion in the federal courts of appeal,  resulting in many wrongful convictions, and imposing an enormous burden on us here at Lawyers on Strike to expose and correct the pernicious error because we just wound up in the position to do that, as if by accident, like getting hit by a bus when crossing the street.

The question on the table, then:  to what extent is the cult of “zealous advocacy” criminal defense responsible for what has happened to us, and our client?

We invite thoughts from “zealous advocacy” advocates.  We are truly interested and won’t be mean.



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5 responses to “Zealous Advocacy

  1. I just read your title only. Those words “zealous advocacy” stuck in my craw for a long time when Judge Sherry Stephens said that about Juan. I wasn’t used to hearing it and maybe it’s said a lot in courtrooms, but yeah…..if what Juan did was zealous advocacy, I would never want any part of his advocacy!


  2. chrishalkides

    One problem with forensics in the courtroom is that some members of the public believe that the prosecution’s witnesses are honest and competent, whereas the defense’s are just hired guns. In my opinion, it is often closer to the opposite.


  3. dueling experts, evolving theories and of course quite often Jurors who think CSI is “real”. I often wonder is anyone (defense or prosecution) interested in the “truth” anymore? I see the Arias case more like who trumped who in shenanigans, zealous advocacy? Nope, just a couple of like minded individuals mastering the game for the world to see.


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