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July 7, 2003

From “Zealous” to “Honorable” — What’s in a Word?

Filed under: pre-06-2006 — David Giacalone @ 10:16 am

With much fanfare (but little press), the Arizona Supreme Court announced last month that it had made “a historic and significant” one-word change in the Arizona Rules of Professional Conduct that would give a new meaning to what it means to be a lawyer. As explained in its press release (June 6, 2003):

In response to a comprehensive two-year study by a State Bar committee on ethical review, the Arizona high court this week removed the obligation of an attorney to be a “zealous” advocate of his/her client and substituted to “act honorably” in the furtherance of a client’s interests.

  • According to Arizona Supreme Court Vice-Chief Justice Ruth McGregor, “Arizona is the first state in the country to make this crucial rule change.” . . . “We are advised that this definitional change will also be considered by the American Bar Association,” says McGregor. “This change may appear to be subtle,” explains Chief Justice Jones, “but in fact, it’s a very significant foundational change in the Rules of the Court, and one that is designed to send a distinct message to attorneys.”

The term “zealous” was eliminated from the preamble, because it was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent, according to one committee member. “Jones explains that the State Bar committee’s recommendation . . . harkens back to a time when lawyers were closely identified as officers of the court. As such, they were duty bound to represent their clients with personal and professional ethics and integrity in mind.”

The changes in the Preamble (sections 1, 2, 8, 9) will go into effect on December 3, 2003, as part of a comprehensive set of changes to Arizona’s Rules for lawyer conduct.

What do you think? Will this make any difference in how law is practiced? I looked up the relevant definitions on OneLook.com:

Quick definitions: zeal noun: (1) excessive fervor to do something or accomplish some end; (2) a feeling of strong eagerness (usually in favor of a person or cause)

Quick definitions: zealous adjective: marked by active interest and enthusiasm

Quick definitions: honorable adjective: (1) showing or characterized by honor and integrity; (2) not disposed to cheat or defraud; not deceptive or fraudulent; (3) adhering to ethical and moral principles; (4) deserving of esteem and respect

It’s sort of hard not to like the word “honorable” (and the related adverb “honorably”). On the otherhand, the active interest and enthusiasm that comes with the word “zealous” isn’t so bad either, especially if you remove the notion of excessiveness or zealotry.  If other states and the ABA are thinking about a similar change, they might consider the phrase “with zeal and honor” (or “zealously and honorably”).

My biggest problems with the word change from zealous to honorable are:

  • The two years of effort spent on this project might have been far better spent addressing the profession’s inability to provide for the legal needs of low and moderate income Americans.  I have this concern whenever I hear about vasts amount of legal and judicial talent laboring over the need for “civility” in the profession.  A few good disciplinary actions or contempt of court orders would go much further to reign in inappropriate lawyer behavior than editing the Preamble to the Rules of Conduct.
  • The tone of the Press Release suggests that the focus of the change is far more on the “dignity of the profession” than on the effects of what I call “the zealous advocate excuse” on clients.  I wish Chief Judge MacGregor had said something like “We are especially concerned that lawyers have been using the excuse of zeal to increase their income by (a) providing clients with unnecessary services; (b) antagonizing the opponents (client and counsel) with excessive, unreasonable positions, demands and posturing;”  and (c) irresponsibly prolonging adversarial proceedings, when compromise and settlement were in the client’s best interests.

update (July 9, 2003):  Supreme Serendipity. Driving back home from Western New York this afternoon, I suddenly realized that I had forgotten a very important meaning for the word “honorably” when I made my posting on Sunday about the Arizona Supreme Court decision to replace the word “zealously” with “honorably” in the Rules of Professional Conduct.  Just by chance, I was listening to the audiobook by Bill Bonanno entitled Bound by Honor: A Mafioso’s Story. (1999, Simon & Schuster Audio Div.)

In the book, Mr. Bonanno (son of the legendary godfather Joe “Bananas” Bonanno) stresses his own connections and life in Arizona, and Mob influence in the State, while describing what it means to be a “man of honor.”   With my own Sicilian ancestry, I shouldn’t have overlooked this special meaning of honor — giving due respect to people of authority and power, while brooking no disrespect to yourself (and seeking revenge when necessary).  We definitely need to consider this special definition, when assessing the possible ramifications of Arizona’s one-word amendment to the Rules of Conduct.  Thank goodness, I pulled that cassette case off the Library shelf before taking my two-day vacation.  Serendipity Rules!

P.S. I’ve never been to Arizona, and this blawg is not supposed to be focused on that State.  AZ just seems to do a lot of interesting things relating to lawyer ethics.  Please send me news from your State about changes, proposals, opinions, etc., that seem to important to how legal ethics affect consumers of legal services.

Update: Walter Olsen at Overlawyered.com discusses this topic in a posting made on July 17, 2003.  He’s hoping the word change will produce meaningful results, as “Time and again, in our experience, the putative obligation to represent clients in a “zealous” fashion has proved the last resort of the scoundrel litigator and ethical edge-skater.”

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