Professional Responsibility in a Nutshell

The basic premise of a professionalized legal system is that people need lawyers to represent them. The basic duty of a lawyer’s relationship to a client, then, is that the lawyer act in the client’s interest in bringing the client’s legal issues to a positive resolution. The basic term used to describe this duty is “zealousness.” There are other duties, such as confidentiality, but these are in some sense secondary: a lawyer who violates them may be a bad person, but not per se a bad advocate. The duty of zealous representation is the truly fundamental one.

My book on professionall responsibility spends a chapter talking about “Zealousness and its Limits,” but that name is something of a misnomer. In fact, the chapter is only about the “limits.” Lawyers must not represent their clients’ interests by bringing frivolous claims; lawyers must not represent their clients’ interests by buying off jurors; lawyers must not represent their clients’ interests by keeping secret information requested by the other side during discovery. And so on and so on. All that most discussions of “professional responsibility” seem to care about when zealousness is on the table are the times when zealous representation comes into conflict with other goals of the legal system.

But what of the other side of the coin? What of the lawyers who sleep while their clients are sentenced to death? What of the lawyers who bungle routine estate plans? What of the lawyers who misunderstand basic tort law and turn away potential clients with winning claims? These things happen every day; every day lawyers are sued for malpractice. They too are failures of zealousness—and its close cousins, competence and diligence—but they merit barely a page in my textbook.

Where failures of lawyers duties to their clients do arise is under the heading of “loyalty”—all those questions that give rise to conflicts of interest in one shape or another. But I think it says something quite striking about lawyers—and about those who think about the ethics of lawyers—that the only situation under which one sees sustained discussion of the failures of lawyers to work zealously for their clients is when there is someone else in the picture in whose interest the lawyer is working.