TEXAS LAWYERS' INSURANCE EXCHANGE
"Change is one thing, progress is another."
Bertrand Russell (1872-1970).
From Basic Writings of Bertrand Russell, "Philosophy and Politics," Ch. 50,
The Columbia World of Quotations, 19961.
Other footnotes are endnotes.
Zealous representation remains as an idealistic expression of an attorney's representation, even though in Texas it has not been part of any official rule of professional conduct since 1990. 2 Under the former ABA Model Rules and Texas Disciplinary Rules, Canon 7 listed separate rules imposing various duties on lawyers to represent clients "zealously within the bounds of the law." Revision of the Texas Disciplinary Rules of Professional Conduct (TDRPC) is again underway,3 and the American Bar Association House of Delegates has just revised the Model Rules of Professional Conduct.4 One change in the new Model Rules not reflected in the Texas draft concerns the extent to which violation of a rule of professional conduct may have evidentiary effect.5 What does this mean for Texas attorneys, in particular regarding zealous representation? With deference to Bertrand Russell's observation, we can hope that the Texas revisions will herald true progress for professionalism, not mere change.
The standard of care as applied to ordinary liability claims, is distinguished here from grievance review of the standard of conduct. As a measure of an attorney's efforts, the ideal of zealous representation is a mercurial benchmark: it is too subjective to be effective in evaluating an attorney's legal services, either for disciplinary or liability purposes. In short, a "zealous representation" standard presents a no-win situation for attorneys either way. Although attorneys still speak of "zealous representation" casually when describing duties owed to a client, more objective language -- such as competence, diligence, and loyalty -- would be a vast improvement.
Zealous representation once served as the mantra for excellence. For those who consider law practice more a profession than a business, it may have evoked the image of a crusader for justice. For some, it now suggests a fanatical, "no-holds-barred" zealot willing to do anything for a client (or for a fee), no matter what. "But wait!" some may say, "Don't I have a duty to represent my client zealously?" It might be surprising to some attorneys that most references of zealous representation are no longer part of the body of the TDRPC (current or proposed) or the new Model Rules.6 Still, it seems that some attorneys have used zealous representation to justify unacceptable conduct even though it may have disciplinary or liability consequences (or both).
The established standard of care for a client's negligence claims is one of
reasonableness. Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989). For a client
dissatisfied enough to sue, no representation could be zealous enough.
Attorneys facing fee forfeiture claims by clients after
Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) must also contend with the
various disciplinary rules as potential evidence relevant to the standard of
conduct in such controversies. Woe be unto the lawyer forced to defend claims
brought in the same litigation by a third party and an unhappy client, the
former claiming that the lawyer went overboard with zealous representation and
the latter claiming the attorney was not zealous enough. Client representation
that is too zealous merely invites third party claims of negligent
misrepresentation,7 fraud, conversion, conspiracy, concealment, or
other claims alleging dishonesty. It is hardly a persuasive defense against
claims by an injured non-client.
Even though Canon 7 and its DR's and EC's are no more, some misdirected
attorneys may still rationalize improper behavior as zealous representation.
Some courts have sanctioned unacceptable behavior. White v. Bayless,
32 S.W.3d 271, (Tex. App. - San Antonio 2000, dism'd w.o.j. 2001) held a
litigant, alleging frivolous claims by opposing counsel, had no cause of action
for conspiracy, the remedy for opposing counsel's unethical behavior being a
public one subject to control through civil procedural rules or the disciplinary
process. In re Kenneth George, 28 S.W.3d 511 (Tex. 2000) disqualified
trial counsel under Rule 1.09 for impermissible conflicts in representing
former and subsequent clients. However, Bradt v. West, 892 S.W.2d 56,
71-72 (Tex. App.- Houston [1st Dist.] 1994, writ denied) held that one counsel
cannot sue opposing counsel for conduct in litigation when representing a client.
What one attorney considers zealous conduct might seem overzealous to
another - or to a court or disciplinary panel. Interpreting TDRPC 8.02, one
Texas appellate court imposed monetary sanctions against an attorney for
maligning the presiding trial judge in open court. Johnson v. Johnson,
948 S.W.2d 835 (Tex. App. - San Antonio 1997, no writ hist.). Specifically,
the Court invoked its inherent powers to punish the conduct: "Zealous
representation does not and cannot include degrading the court in the hopes
of gaining a perceived advantage." Id., 948 S.W.2d at 841. In an
unusual show of judicial muscle, the Court also referred the matter for
disciplinary review because counsel's conduct raised a substantial question
about honesty, trustworthiness, or fitness as a lawyer. Id; see also,
United States v. De La Rosa, 171 F.3d 215 (U. S. 5th Cir. [Tex.] 1999)
(misquoting case law and the transcript).
The creditor's attorney appeared at an absent debtor's home in
Miller v. Stonehenge/FASA-Texas, 943 F. Supp. 461
(U.S.D.C. N.D., Tex. 1998), to assist the U.S. Marshals serving the writ of
execution. The attorney arranged for inspection and inventory of personal
property at the home, brought three jewelry appraisers, a locksmith, and a
videographer, and told the protesting wife not to leave. Judge Buchmeyer's
order denied dismissal of her claims (including conspiracy, invasion of
privacy, intentional infliction of emotional distress, and abuse of process)
against the creditor's attorney, acknowledging the attorney's authority to be
there, but disapproving the attorney's actions as non-legal in nature, thus
inappropriate for representing the client zealously within the bounds of the law.8
Id., at 465.
The standard of care in civil damage cases was once set apart from the code of
ethics or conduct in disciplinary proceedings.9 The disciplinary
rules were not intended to define the standard of care for civil liability or
create a basis for a cause of action against an attorney. Unfortunately for
attorneys, that line was crossed when Texas courts began giving evidentiary
status to the TDRPC. Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999),
a mass tort case, held that on remand the jury could determine factually
whether an attorney committed misconduct sufficient to trigger a judicial
ruling on "clear and serious breach of fiduciary duty" and whether any fee
forfeiture to the client should be ordered. Similarly, Hendry v. Pelland,
73 F.3d 397, 1996 U.S. App. LEXIS 584 (D.C. Cir., 1996) reversed a summary
judgment, holding that a reasonable jury could find the attorney representing
five joint owners of family realty had violated former conflicting
representation rule DR 5-105, breaching his fiduciary duty of loyalty.10
The TDRPC revisions make no mention of a rule violation being evidence of a
breach of the applicable standard of conduct, unlike Part 20 of the Model Rules
Preamble. Even so, Burrow v. Arce demonstrated that factual allegations
of misconduct may become jury issues in Texas legal malpractice cases concerning
breach of fiduciary duty claims for fee forfeiture. Although only clients may
assert such claims, they are not always the only claimants in a legal
malpractice lawsuit. Where a non-client third party and a client sue a lawyer
in the same cause of action, evidence of misconduct regarding the alleged
breach of fiduciary duty dramatically increases the risk of confusing the jury
on the other claims. Thus, when breach of fiduciary duty allegations are
coupled with ordinary negligence or other claims in which misconduct is not an
element of proof, the jury's decision may be wrongly prejudiced on those issues.
An apparent dichotomy has developed between civil and criminal matters
concerning "zealous representation" as a measure for attorney performance. On
the criminal side, lack of zealous representation arguments were urged regarding
the right to effective assistance of counsel under the Sixth and Fourteenth
Amendments. See, e.g., Strickland v. Washington,
466 U.S. 668 (1984); United States v. De La Rosa, 171 F.3d 215
(U.S. 5th Cir. [Tex.] 1999). Although criminal habeas corpus decisions
frequently equate zealous representation with minimum diligence or competence,
civil judicial opinions seem to demand more. Note that the effectiveness of an
attorney's representation is reviewed in habeas cases as a matter of law by
appellate courts. In Texas civil matters arising after Burrow v. Arce,
an attorney's representation and professional conduct may now be reviewed at
the trial level by the finder of fact. Thus, the same civil jury could face
the dilemma of deciding fact issues about an attorney's breach of the standard
of conduct (or misconduct) for equitable fee forfeiture under the disciplinary
rules, and also determine common law liability facts concerning a breach of the
standard of care. Although the issues raised in Arce did not concern zealous
representation, such a situation could pose an entirely different challenge
for a jury's objectivity than review of the standard of conduct or standard
of care based on an appellate record.
In essence, the "zealous representation" language once expected to serve as
an administrative standard of conduct only for disciplinary purposes has
crossed over into appellate criminal analysis and civil trial controversies.
Breach of fiduciary duty cases seeking fee forfeiture concern an equitable
remedy, and often involve separate damage claims based on fact issues about
a breach of the standard of care. As such, a jury's consideration of "zealous
representation" as a standard of conduct fact issue is likely to create more
confusion than clarity. It raises the frightening prospect of allowing a jury
to misinterpret the standard of care as one of strict liability rather than
reasonableness under the circumstances.
Although one can aspire to lofty ideals in "representing a client zealously,"
representation that pushes the outer limits of professionalism can be
misinterpreted abusively. "Zealous representation" of a client is hardly a
viable defense to claims brought by non-clients, such as those of negligent
misrepresentation, concealment, fraud, or conspiracy. Attorneys assessing
their own performance would do well to find a better benchmark. Also, it makes
sense to be cautious and decline to represent overly demanding clients
(or carefully limit the scope of representation), when the attorney is asked
to push the limits of ethics and sound judgment.
The search for a standard with greater clarity, continuity, and objectivity
should outweigh any sentiment attached to "zealous representation." The
realities of multi-jurisdictional practice issues and ever-increasing mobility
of persons and businesses across state (and international) lines demand the use
of objective terms that can be understood and applied more uniformly.
"Zealous representation" is not a part of the current and revised TDRPC11 and
is not a duty as such; therefore, it should not be allowed as part of counsel's
argument, expert opinion, or given evidentiary value in court.12 As a guideline
for attorneys, juries, and judges, references to zealous representation in open
court can be more confusing than helpful. In contrast to the subjective issue
of conduct linked with "zealous representation," it makes better sense to
emphasize the terms in the rules that do speak more clearly and objectively to
the standard of care: competence, diligence, and loyalty.
1 See this volume online at
http://www.bartleby.com/66/4/47704.html.
2 Prior to January 1, 1990, Canon 7 of the State Bar Rules stated,
"A Lawyer Should Represent a Client Zealously Within the Bounds of the Law."
See 3 TEX.GOV'T CODE ANN., Title 2, Subtitle G, art. 10, § 9, at 487ff.
(Vernon's 1988, and Supp. 1992). Various changes in the rules dispersed the
respective DR's under Canon 7 throughout the TDRPC. Cf.,
Texas Farmers Ins. Co. v. Soriano, 844 S.W.2d 808 at 842
(Tex. App. - San Antonio, 1992); judgment reversed, 881 S.W.2d 312 (Tex. 1994)
(UIM / bad faith); Maynard v. Caballero, 752 S.W.2d 719 at 721
(Tex. App.- El Paso, 1988 writ denied) (tortious interference).
3 See the final draft of the proposed Texas rules online soon at
http://www.txethics.org. The proposed
TDRPC would leave intact the three instances where zealous representation is
mentioned: twice in the preamble, and once in the comments to Rule 1.01:
4 See the redlined version of the revisions at
http://www.abanet.org/cpr/e2k-final_rules2.html.
5 "Violation of a Rule should not itself give rise to a cause of
action against a lawyer nor should it create any presumption in such a case
that a legal duty has been breached. . . . Nevertheless, since the Rules do
establish standards of conduct by lawyers, a lawyer's violation of a Rule may
be evidence of breach of the applicable standard of conduct." ABA Model Rules
Preamble, Part 20 (2002).
6 Prior to the Model Rules, the ABA Model Code served from 1969 to
1983 as the national model of professional standards governing the practice of
law and is still in effect in a few jurisdictions. See also footnote 3.
7 To preserve the privity doctrine, Texas courts historically
dismissed negligent misrepresentation claims, in part because of the former
duty of zealous representation. However, a third party non-client may now sue
for actual damages where an attorney's representation for a client was made to
encourage the non-client's justifiable reliance on that representation.
See, e.g.,
McCamish, Martin, Brown & Loeffler v. F. E. Appling Interests,
991 S.W.2d 787 (Texas 1999) and
First Nat. Bank of Durant v. Trans Terra Corp. International,
142 F.3d 802 (U. S. Ct. App. 5th Cir. [Tex.] 1998).
8 Professional liability policies cover professional legal
services only as defined; most professional liability policies exclude
claims of dishonesty or intentional wrongs.
9 Part 15 of the Preamble to the TDRPC now states:
10 Without treating the issue as one for a jury, two other states
have used a similar approach; cf., Seibers v. Pepsi-Cola Bottling Company,
2000 Tenn. App. LEXIS 818 (Tenn. Ct. App. - Nashville, 2000), and
Somuah v. Flachs, 721 A.2d 680; 1998 Md. LEXIS 951 (Md. Ct. App.1998).
11 See n.3 above.
12 The rules state many duties of professional conduct specifically,
hence various potential violations (apart from non-rule terminology about
zealous representation as advocate) could be offered as evidence of misconduct
in a fee forfeiture case. A lawyer has a duty of competence and diligence
(Rule 1.01), confidentiality (Rule 1.05) and loyalty (Rules 1.06-1.09),
to name a few.
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© Texas Lawyers' Insurance Exchange 2000-02. This page was last updated
March 22, 2002.
How Far is Too Far?
Zealous Representation as Construed by a Jury
The Search for Objectivity: Competence, Diligence, and Loyalty
"Preamble . . . .
2. . . . As advocate, a lawyer zealously asserts the client's position under
the rules of the adversary system. . . .
3. In all professional functions, a lawyer should zealously pursue clients'
interests within the bounds of the law. In doing so, a lawyer should be
competent, prompt and diligent. . . .
Rule 1.01, comments:
6. 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. . . ."
"These rules do not undertake to define standards of civil
liability of lawyers for professional conduct. Violation of a rule does not
give rise to a private cause of action nor does it create any presumption that
a legal duty to a client has been breached. Likewise, these rules are not
designed to be standards for procedural decisions. Furthermore, the purpose of
these rules can be abused when they are invoked by opposing parties as
procedural weapons. . . . Accordingly, nothing in the rules should be deemed
to augment any substantive legal duty of lawyers or the extra-disciplinary
consequences of violating such a duty." TEX. GOVT. CODE Title 2,
Subtitle G-Appendix Art. 10, Sec. 9 (eff. January 1, 1990),
Preamble: A Lawyer's Responsibilities.
The 1983 Model Rule Preamble contained similar language; rules adopted by
other states may contain other variations of this provision.