A Private Law Defense of Zealous Representation

104 Pages Posted: 7 Feb 2016 Last revised: 5 Feb 2020

See all articles by Charles Silver

Charles Silver

University of Texas at Austin - School of Law

Date Written: February 5, 2020

Abstract

Moral philosophers object to the ethic of zeal, also known as the fiduciary duty and the principle of partisanship, because it requires lawyers to ignore any adverse effects that lawful actions beneficial for clients may have on third parties. For example, when representing a landlord, a lawyer may not refrain from evicting a tenant family that is behind on the rent for fear that the children will wind up on the street. Because harms inflicted on third parties normally bear on moral assessments, philosophers contend that lawyers who ignore them are amoral, immoral, or morally stunted.

Critics of zealous representation have won important battles. Where the Model Code of Professional Responsibility once canonized the requirement “to represent [a] client zealously within the bounds of the law,” the Model Rules of Professional Conduct now addresses zeal in a brief comment on diligence which emphasizes that a lawyer need not press for every advantage. Zealous representation has acquired a bad name.

This article offers a defense of zealous representation that is grounded in the common law of agency. The central points are, first, that the requirement to promote clients’ interests exclusively disciplines the common law by ensuring that principals’ rights and obligations are changed only with their consent; and, second, that the requirement facilitates the division and specialization of labor by shoring up principals’ confidence in agents who possess specialized knowledge and skills. Critics of the ethic of zeal have neither recognized these functions nor taken proper account of them when encouraging lawyers to give non-clients’ interests greater weight.

Keywords: fiduciary duty, legal ethics, agency law, lawyers

JEL Classification: K40, K41

Suggested Citation

Silver, Charles M., A Private Law Defense of Zealous Representation (February 5, 2020). U of Texas Law, Public Law Research Paper No. 638, Available at SSRN: https://ssrn.com/abstract=2728326 or http://dx.doi.org/10.2139/ssrn.2728326

Charles M. Silver (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
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