Is it Time to Remove “Zeal” From the ABA Model Rules of Professional Conduct?
May 26, 2021
American Bar Association
Types : Bylined Articles
Why the term “zeal” as used in the ABA Model Rules is misleading and potentially harmful, and why its removal will result in rules that clearly set out a lawyer’s ethical obligations while promoting the highest level of professionalism.
By: Daniel Harrington and Stephanie K. Benecchi
The History of “Zealous Representation” in the Model Rules
The American Bar Association (ABA) Model Rules of Professional Conduct do not impose a duty of “zealous representation.” They never have. Even before the ABA adopted the Model Rules in 1983, no such duty existed in the predecessor rules, the Disciplinary Rules under the Model Code of Professional Responsibility (CPR). While “zealous representation” was mentioned in Canon 7 and Ethical Consideration 7-1 of the CPR, these provisions were merely “aspirational”; they were neither mandatory nor a basis for professional discipline.
Under the Model Rules as they exist today, “zeal” and its derivatives appear four times, all
in provisions outside of the actual rules themselves. In other words, there is no actual
Model Rule that requires the “zealous” representation of a client.