(Originally published Oklahoma Bar Journal June 10, 2000 - Vol. 71; No. 18) 

The Effect of Overzealous Advocacy on Professionalism - What is A Lawyer's Duty Under Rule 1.3?
By Allen K. Harris

Abusive litigation in the United States is mostly the product of a lack of professionalism. Lawyers who bring frivolous lawsuits who engage in abusive litigation tactics are unprofessional. They need to be better regulated by state supreme courts and better controlled by the trial judges who, in turn, are supervised by state supreme courts. . . . Lack of professionalism is a cancer which also infects office practice. --  E. Norman Veasey, Chief Justice of the Delaware Supreme Court, President, Conference of Chief Justices, Chair, Board of National Center for State Courts, and Chair, ABA Ethics 2000 Commission1

There has been a heightened yearning for professionalism in Oklahoma and around the country. In analyzing why this is so, advocates of the professionalism movement perceive an increase in overzealous advocacy and a decline of discovery ethics.

As Tulsa's John Athens said in his article, "The Decline of Professionalism," in 1998,

[T]here appears to have been a marked erosion of professionalism with the passage of time. . . . [W]hat we have been doing is losing our personal honor. I urge all of us to do what we can to regain that honor. . . .The road we take does make a difference.2

What do we mean when we use the term "professionalism"? Perhaps the best definition comes from Delaware Chief Justice E. Norman Veasey. Veasey heads the National Conference of Chief Justices and also chairs the ABA's Ethics 2000 Commission, a commission which has been convened to examine the Model Rules of Professional Conduct. Veasey writes:

What is the difference between ethics and professionalism? Ethics is a set of rules that lawyers must obey. Violations of these rules can result in disciplinary action or disbarment. Professionalism, however, is not what a lawyer must do or must not do. It is a higher calling of what a lawyer should do to serve a client and the public.3

One of the causes for the decline of professionalism may be a misconception by some lawyers that former Canon 7's requirement of zealous representation remains as a requirement in the Rules of Professional Conduct which replaced the Code of Professional Responsibility in many states. In Oklahoma the Rules of Professional Conduct were adopted in 1988.

When Rule 1.3 of the Oklahoma Rules of Professional Conduct (ORPC) replaced Canon 7 of the former Code of Professional Responsibility, it replaced the black-letter duty of zealous representation of Canon 7 with the duty of "diligent representation" in Rule 1.3. The duty of "zealous representation" is not found in the Comment to Rule 1.3. The comment speaks of the duty to represent one's client with "zeal." The misconception that "zealous advocacy" is required by the present rule may be fueling the "Rambo" practice of law, whether it be in litigation, particularly in pre-trial discovery practice, or in office or transactional practice.4 The misconception about zealous representation still being in the ORPC was documented recently in public hearings of the OBA Task Force on Professionalism & Civility held in 1999, discussed further below.

A 1997 article by Phil Frazier, of Tulsa, was entitled, "This is the Key to Improving Our Image." In it he refers to the ABA's landmark 1986 Report on Professionalism:

We have much less a sense of shared values than we used to have . . . .

There once was a common understanding of how you acted. You zealously represented your client, but you had respect for the other side and treated them with dignity. Afterward, you would all go out for a drink.5

Phil Frazier's article continues:

If professionalism is not dead within our ranks, then certainly it has been asleep for far too long. . . . Remember when the common phrase was "doctors and lawyers," not "lawyers and used car salesmen."6

But there is much more to the professionalism movement than improving lawyers' images. In his discussion of zealous representation in his article, it is clear from Phil Frazier's remarks that he was concerned with resolving disputes "at the minimum expense to clients in both sides of the dispute," without discovery abuse or other unprofessional tactics. In other words, zealous advocacy, not overzealous advocacy and not zealotry.

The then President of the Florida Bar, John Frost, wrote in 1997 of a lawyer who stopped practicing law:

I was tired of the deceit. I was tired of the chicanery. But most of all, I was tired of the misery my job caused other people. Many attorneys believe that "zealously representing their clients" means pushing all rules of ethics and decency to the limits.7

The phrase "zealous advocacy" is frequently invoked to defend unprofessional behavior and a "Rambo," or "win at all costs," attitude. A law review article points to an order by Cook County Circuit Judge Richard Curry, concerning overly aggressive deposition behavior. In it Judge Curry states:

Zealous advocacy is the buzz word which is squeezing decency and civility out of the law profession. Zealous advocacy is the doctrine which excuses, without apology, outrageous and unconscionable conduct, so long as it is done ostensibly for a client, and, of course, for a price. Zealous advocacy is the modern day plague which weakens the truth finding process and makes a mockery of the lawyers' claim to officer of the court status. . . . 8

In another legal article entitled, "Rediscovering Discovery Ethics," the author points out that while lawyers have a duty to be advocates for their clients,

[T]his duty does not apply with full force to discovery. The function of discovery within the litigation system requires that lawyers assist the court in adjudicating the dispute on the merits by disclosing the facts necessary for the court to make an informed decision. With limited exceptions, advocacy comes into play only after the facts are fully disclosed. Courts are beginning to recognize that the discovery system is designed to facilitate truth finding, and they are involving lawyers in this search for the truth. They are imposing public duties on lawyers in discovery that are not merely rhetorical fluff, but have content and carry severe sanctions for their violation.9

This discovery ethics article, by W. Bradley Wendel, a practicing attorney in Seattle, advances the concept that in litigation partisan advocacy should be confined to post-discovery practice and that an attorney cannot assist the client as a zealous advocate in nondisclosure of the facts or selective disclosure of requested information. A number of tactics come to mind, such as the use of a misleading description of alleged privileged items which prevents the other side from challenging damaging items withheld from a document production request. Another temptation for the "Rambo" lawyer is to resort to an artful, confusing response to a request for document production, calculated to confuse and mislead the adversary in order to suppress damaging facts.

Wendel discusses the different roles of the lawyer in discovery and in the post-discovery trial phase after the facts are developed. Except for the work product doctrine and the attorney-client privilege, the author states,

[T]he legal system does not frequently devalue the truth to promote other ends in civil litigation. Rules of relevancy in evidence, for example, operate only at trial. Information need not be admissible at trial to be discoverable, so long as it appears reasonably calculated to lead to discovery of admissible evidence. In short, suppressing information that may bear on the resolution of a dispute represents an internal good for the legal system in only a few, discrete, clearly demarcated instances.10

Wendel's reasoning in his article's thorough treatment of the issues, poses the conflict between the lawyer's being an advocate for non-disclosure in discovery vs. her role as an officer of the court to aid the court and the legal system during the pre-trial phase in the broad duty of the parties to disclose relevant information. Wendel criticizes what he calls the "old school" argument that 1) a lawyer's obligation to represent her client must be given priority [in] litigation over the lawyer's duties as "officer of the court;" 2) civil discovery procedures are part and parcel of the adversary system of litigation; and 3) under a lawyer's duty of zealous advocacy, the opposing party's requests are to be strictly construed and all doubts resolved in favor of nondisclosure.11

Wendel's "counter-principles" in opposition to the old school argument are worthy of consideration in the search for a way to discourage unprofessional conduct in discovery which generates much of the professionalism criticism of lawyers and the legal process. Wendel's conclusions are:

(1) With respect to matters of fact, the lawyer's primary obligation is to the discovery of the truth rather than to the advancement of the client's interest, unless some clear countervailing interest is recognized [i.e., attorney-client privilege and work product doctrine];

(2) The discovery system is not bound up with the adversary system; partisanship comes into play only after all of the facts have been revealed to both sides;

(3) (Derived from (A1) and (A2)) It is a breach of the lawyer's duty as an officer of the court to fail to disclose information that would assist the tribunal in determining the case on its merits.12

The author makes clear that his proposed counter-principles apply only to discovery practice and do not limit the obligation of a lawyer to put the best "spin" on the facts to advocate how the facts should be weighted by the tribunal.13

A recent Federal Court ruling in Georgia in the E. I. Dupont Benlate litigation demonstrates the problems in which lawyers and clients can find themselves as a result of unprofessional discovery conduct. In December 1998, an Atlanta law firm was ordered by the court to pay $250,000 and its client, DuPont, $11 million for withholding unfavorable evidence in discovery involving the pesticide Benlate.

The court demonstrated its concern about professionalism by ordering that the lawyers and the client pay the money to establish professionalism chairs of $2.5 million each at four Georgia law schools, plus $1 million to endow an annual professionalism seminar rotated among the four law schools. The $250,000 paid by the law firm was ordered paid to the Georgia Chief Justice's Commission on Professionalism for the purpose of enhancing professionalism of the practicing Bar in the State of Georgia.14 The shock waves of the Benlate litigation ruling reportedly sent many lawyers to their files for a second look at their handling of discovery in pending cases.

Lawyers who rationalize "Rambo" tactics as zealousness are, perhaps, confusing zealousness with overzealousness or with the new duty to represent one's client diligently (black letter Rule 1.3) or with "zeal" (Comment to Rule 1.3 ORPC). Though some lawyers apparently assume that zealous representation means "win at all costs," "push the envelope," be "vehement" or be "abusive," a more likely meaning of "zealous" is found in the following dictionary definitions: "diligent,' "warmly engaged," "fervent" and "ardent.' Therefore, even if the duty of "zealous" representation had not been replaced by the duty of "diligent representation" in the current Oklahoma Rules of Professional Conduct, 'zealous" advocacy would still not authorize a win at all costs approach15 or abusive or improper conduct toward opposing counsel,16 nor would it allow improperly coaching witnesses during deposition, concealing discovery, false invocation of privilege, incorrectly describing documents asserted as privileged or misrepresenting the facts or law in pleadings, briefs and letters whether in litigation or in transactional law.

Professionalism standards by bar associations have begun to address such professionalism abuses by aspirational standards conveying that the local bench and bar do not condone such behavior. A number of recent professionalism codes have come out specifically against lawyer conduct which interferes with the truth seeking mission of the justice system. Reflecting the local concern of practicing lawyers and the bench, many local bar associations have adopted such professionalism codes. According to the ABA Standing Committee on Professionalism, 105 county and city and state bar associations have acted to raise the professional conduct of lawyers in their areas in recent years.17 Some states have institutionalized professionalism in the form of Supreme Court Commissions on Professionalism or other professionalism entities. The Seventh Circuit U. S. Court of Appeals has published standards of professionalism for its members.

It has recently been held that a lawyer's duty to represent his client zealously is not a defense to sanctions for the lawyer's misconduct. Citing the importance of civility in legal practice, Judge Denny Chin of the U. S. District Court for the Southern District of New York, imposed a $50,000 sanction against a lawyer for, among other things, threatening to file suit against his client's former lawyer and conducting the "legal equivalent of a proctology exam" on the lawyer's billing practices unless a settlement was reached that same day. The judge held that "a lawyer may be sanctioned for abusive or improper conduct, even when he or she is pressing a colorable claim or defense on behalf of his client."18

Misrepresentations and misstatements of law or fact can also occur in the non-litigation setting, some times with less reluctance because it may appear to "Rambo" that there is less chance of a court seeing such conduct as misstating an adversary's position, shading facts or placing false facts in unsworn memoranda in transactional law practice. At the time, it may appear to "Rambo" that such a course is worth the chance or that it will curry favor with a combative client. In an effort to deter such conduct, The Jacksonville [Florida] Bar Association has adopted Professional Guidelines for Business Lawyers which provide:

An attorney's word should be his or her bond. The attorney should not knowingly misstate, distort or improperly exaggerate any fact, opinion, or legal authority and should not improperly permit the attorney's silence or inaction to mislead anyone. Further, if this occurs unintentionally and is later discovered, it should immediately be disclosed or otherwise corrected.

Overzealousness interferes with the truth seeking mission of discovery and the lawyer's duty to comply with the discovery rules that are designed with that purpose in mind. It is no excuse that a lawyer is employed to be a "hired gun" to engage in sharp practice and turn the representation into a "win at all costs' combat.

"Sharp practice' has been studied and defined by a report of the New York County Lawyers' Association as follows:

Sharp practice means overreaching, crafty or underhanded conduct in litigation -- in short, "dirty tricks." Examples include, but are not limited to: placing false facts in unsworn memoranda, misquoting court opinion, having ex parte communications with the court, writing letters purporting to "confirm" agreements that never took place, coaching a witness during a deposition with "speaking" objections, misstating an adversary's position, withholding discoverable documents, and other obstructionist tactics.19

Virtually all New York County lawyers surveyed said they had encountered such conduct by their adversaries. A clear majority reported that underhanded conduct is more prevalent in state court than in federal court proceedings.

Dean Larry Hellman of the OCU Law School, recently wrote an article on the results of the 1999 public hearings of the OBA Task Force on Professionalism & Civility of which he is Co-Chair. His article was published in the Oklahoma County Bar Briefcase, entitled "Professionalism Forums Reveal Common Themes."20 Dean Hellman points out that most lawyers do not realize that the phrase "zealous advocacy" was replaced by "diligent representation" when the Rules of Professional Conduct were adopted in Oklahoma in 1988. "One wonders,' he says, "just how much unprofessional and uncivil conduct today is premised on this misunderstanding."21

The problems of the Rambo practice of law are not going away. What we do to change the way we conduct ourselves in non-courtroom representation activities to prioritize the truth - seeking mission of the justice system could go far to raise lawyers in the eyes of the public, reduce client costs and aid in the truth-seeking mission of the discovery phase of the justice system. The 1986 ABA Report on Professionalism concluded with the following assessment of the legal profession:

Lawyers are now to a greater extent than formerly business men, a part of a great organized system of industrial and financial enterprise. They are less than formerly students of a particular kind of learning, the practitioners of a particular art. And they do not seem to be so much of a distinct professional class.22

The same ABA Report also brings home the sobering possibility of regulation of the profession by outside forces if it does not reform itself:

Similarly, it behooves the legal profession to work voluntarily toward the implementation of these and other reforms that will make us more of a profession "in the spirit of a public service." If such action is not taken, far more extensive and perhaps less- considered proposals may arise from governmental and quasi-governmental entities attempting to regulate the profession. The challenge remains. It is up to us to seize the opportunity while it is ours.23

The question then becomes, what can we do about this perceived lack of professionalism? Experts say that problem lawyers or 'Rambo" lawyers comprise up to 10 percent of all lawyers nationally.24 Chief Justice Veasey in his article, "Making It Right"25 recommends institutionalizing professionalism as one method:

How can we move from fragmented, ad hoc, stop and start professionalism to more enduring methods? Some issues to consider are the following:

• Uniform codes of civility and professionalism

• Commissions in various states - Georgia, New Jersey, Florida, Oregon

• Ethics Institute - New York, Texas, Illinois

• Teaching professionalism in law schools

• Bridging the gap from law school to practice26

One may ask, why does something need to be done? The 1996 ABA Symposium, on Teaching and Learning Professionalism answers the question this way:

Most of us would agree that over the years, there has been a decided decrease in civility, and an increase in some forms of unethical behavior. . . . We need to focus on these issues of professionalism not only because of lofty ideals, but because professional conduct makes everyone's life easier, ensures that a better product is delivered to a client, and protects all of us from the generalized, negative view of lawyers that is so often held by the public.27

1. "Making It Right - Veasey Plans Action to Reform Lawyer Conduct," Business Law, March-April, 1998
2. "The Decline of Professionalism," John S. Athens, 69 Oklahoma Bar Journal No. 13, 3/28/98, pp. 1068, 1076.
3. Id, p. 44.
4. The former Oklahoma Code of Professional Responsibility, Canon 7 states:
    "A Lawyer Should Represent A Client Zealously Within The Bounds of the Law." The Code was replaced in Oklahoma in 1988 by the Oklahoma Rules of Professional Conduct.
5. "This is the Key To Improving Our Image," by Phil Frazier, Tulsa Lawyer, Oct. 1997. Mr. Frazier is a past Chair of the Professionalism Committee of the Tulsa County Bar Association and a current member of the OBA Board of Governors.
6. Id.
7. "The Topic Is Civility - You Got A Problem With That?" John W. Frost, II, The Florida Bar Journal, January 1997.
8. "Rambo Bites the Dust: Current Trends in Deposition Ethics," 22 The Journal of the Legal Profession 122 (1998). The author attributes Judge Curry's statement to, "A Critique of the Movement: Why Rambo Will Not Go Away," 77 Marquette Law Review, 751, 767 (1996). The author of the latter article states: "This quote [by Judge Curry] symbolizes the [increasingly prevalent] view that the primary roles of an attorney should be to learn the truth and to protect the integrity of the court."
9. W. Bradley Wendel, "Rediscovery of Discovery Ethics," 79 Marquette Law Review, 895, (1996).
10. Id at pp. 934, 935. The article also points out another difference in a lawyer's role in pre-trial discovery, i.e., the fact that an attorney and client do not have an absolute right to confer during deposition, citing Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993).
11. Supra, footnote 9, p. 929.
12. Id at p. 935.
13. Id at p. 936.
14. The Bush Ranch Inc., and Yellow River Growers, et al, v. E. I. DuPont De Nemours & Co., No. 4:95 CV-36, .S.D.C., Mid. Dist. Ga., Columbus Div., December 31, 1998.
15. Under Ethical Considerations to Canon 7, E-C 7-1discusses the meaning of representing a client "zealously." A review of E-C 7-1 and the footnote material thereunder provides little comfort to the Rambo practitioner who invokes the duty of zealous representation to defend abusive or improper tactics. For example, Footnote 4 to E-C 7-1 states:
   Rule 4.22 requires "candor and fairness" in the conduct of the lawyer, and forbids the making of knowing misquotations; Rule 4.47 provides that a lawyer should always maintain his integrity and generally forbids all misconduct injurious to the interests of the public, the courts, or his clients, and acts contrary to justice, honesty, modesty or good morals. . . .
    And former DR 7-101 "Representing a Client Zealously" provided that "A lawyer does not violate this Disciplinary Rule. . . by avoiding offensive tactics."
16. See Principe v. Assay Partners, 586 N.Y.S.2d 182 (1992) in which an attorney's rude and condescending references to a female colleague during deposition as "little lady" and "little girl" constituted unprofessional conduct supported by no colorable argument and warranted sanctions on grounds of frivolous conduct. The court cited the Code of Professional Responsibility, Canon 7, Disciplinary Rule 7-102(A)(1) as mandating that professional conduct be
     "Within the Bounds of the Law" and requires an attorney not take action which would serve "merely to harass or maliciously injure another. . . .
17. Letter to the author from Carole L. Mostow, Assistant Professionalism Counsel to the ABA Standing Committee on Professionalism, March 5, 1999. For example, The Mobile [Alabama] Bar Association Lawyers Code of Professionalism states:
    "Lawyers should not make factual or legal assertions that, to the best of their knowledge, are not truthful or accurate; they should not knowingly deceive another lawyer. Candor between lawyers is vital to open channels of communication, which in turn saves time and expense. . . . "
The Hillsborough County Florida (Tampa) Standards of Professional Courtesy address unprofessional conduct in document production in discovery, as follows:
"As to document demands:
. . . .
    (3) In responding to document demands, a lawyer should not interpret the request in an artificially restrictive manner in an attempt to avoid disclosure.
    (4) A lawyer responding to document demands should withhold documents on the grounds of privilege only where appropriate.
    (5) A lawyer should not produce documents in a disorganized or unintelligible fashion, or in a way calculated to hide or obscure the existence of particular documents.
    (6) A lawyer should not delay producing documents to prevent opposing counsel from inspecting documents prior to scheduled depositions or for any other tactical reason."
    Hillsborough County Standards of Professional Courtesy, Section F, and Santa Clara County Bar Association Code of Professionalism, Section 9, Discovery. The Los Angeles County Bar Association adopted the same provisions in its "Litigation Guidelines," Section 6.
    The Philadelphia Bar Association's "Working Rules of Professionalism" provide:
    "If your adversary is entitled to something, provide it without unnecessary formalities. Discovery disputes and motion practice cost time and money. They should be a last resort."
    Oklahoma has adopted "Guidelines for Professional Courtesy" and a "Lawyers Creed." These were first adopted by the Oklahoma County Bar Association in November 1988 and were adopted by the Oklahoma Bar Association as the "OBA Guidelines for Professional Courtesy" and the "A Lawyer's Creed" in November 1989.
18. Revson v Cinque & Cinque P.C., S.D.N.Y., No. 97, Civ. 9236 (DC), 11/22/99.
19. "Incivility and Sharp Practice," A Report of the Committee on the Supreme Court of the New York County Lawyers' Association, July, 1993.
20. Vol. 31, Briefcase, No. 6., Jun., 1999.
21. Id.
22. ABA Report of the Commission on Professionalism, p. 55 (1986), citing Geoffrey Hazard and Deborah Rhode in their 1985 work, "L. B. Brandeis, The Opportunity in the Law, in Legal Profession: Responsibility and Regulation." (1985). Though sounding like a statement written today, it was made by Louis D. Brandeis in 1905.
23. ABA Report of the Commission on Professionalism, p. 56 (1986).
24. Estimate by Beryl P. Crowley, Executive Director, Texas Institute for Professionalism and Ethics, in address to OBA Task Force on Professionalism & Civility, February 5, 1999.
25. Supra, footnote 1, p. 47.
26. Id, p. 47.
27. "Competence, Ethics and Civility as the Core of Professionalism: The Role of Bar Associations and the Special Problems of Small Firms and Solo Practitioners," by Donald Hubert, published in Teaching and Learning Professionalism, Symposium Proceedings (1997) sponsored by the ABA Section of Legal Education and Admissions to the Bar Professionalism Committee and the Standing Committee on Professionalism and Lawyer Competence of the ABA Center for Professional Responsibility, p. 117.

ALLEN K. HARRIS of Oklahoma City, is Chairperson of the OBA Legal Ethics Committee, Cochaiperson, OBA Professionalism & Civilty Task Force, and member, Advisory Council, ABA Ethics 2000 Commission.  He served as Law Clerk for U.S. District Judge Fred Daugherty, Special Counsel to Gov. David Boren and Editor of the Oklahoma Bar Journal.  He is a member of the Association of Professional Responsibility Lawyers and the OBA Task Force on Rules Governing Disciplinary Proceedings.  He received an A.B. from George Washington University and a J.D. from Oklahoma City University.  He concentrates on health care, professional responsibility, legislative and regulatory matters.