Against a Lawyer’s Duty to Be “Zealous” or “Resolute”

AuthorAlice Woolley
DateMarch 15, 2018

Canadian lawyers have a legal duty of resolute or zealous advocacy. Law society codes of conduct direct lawyers to represent clients “resolutely and honourably” (FLS Model Code, Rule 5.1-1). The Supreme Court of Canada says that a core aspect of a lawyer’s duty of loyalty is the “duty of commitment to the client’s cause (sometimes referred to as ‘zealous representation’)” (R v Neil 2002 SCC 70 at para. 19).

Not everyone likes those duties. They worry that they implicitly endorse lawyer aggression. They think duties of honour and integrity, and as an officer of the court, ought to govern lawyer representation of clients. At minimum, Canadian lawyer’s advocacy should only be resolute, not zealous. I want to raise a different objection. Specifically, that zealous (or resolute) advocacy focuses on the wrong thing. It focuses not on what a lawyer does or accomplishes, but rather on what the lawyer feels, on her state of mind in relation to the client’s cause. That sort of focus is a mistake.

Consider a hypothetical lawyer, “Jack”. Jack works as a senior associate in a large law firm representing corporate clients in litigation. Jack loves to travel and likes nice things, and values the large firm salary that supports both. He enjoys the people he works with at the firm, and respects their intelligence and professionalism. He views his clients’ cases with indifference at best (it’s just money, after all), but a desire to keep his well-paid job and to be perceived by colleagues as competent, makes him careful in his research and writing, and diligent in his preparation for discoveries and trial. He is a careful and well-prepared examiner of witnesses and presenter of argument, even if no one is going to confuse him for Perry Mason. Both partners and corporate clients enjoy working with him; his performance reviews have been excellent.

Or consider “Jane”, a criminal defence lawyer. Jane became a criminal defence lawyer because her defence lawyer father offered her articles. Once she completed them, she stayed because no other work seemed better, and she doubted her ability to learn and succeed elsewhere. Jane does not feel the ardent commitment that some of her colleagues do to the rights of a criminal accused. She doesn’t oppose them obviously, but they do not motivate her. Jane instead goes to work every day, seven days a week, driven there by persistent low-grade anxiety and depression, and intense self-doubt. She carefully reviews all Crown disclosure, investigates her client’s cases and prepares thoroughly for every court appearance. She takes little pleasure in acquittals, although worries that client convictions reflect her own fundamental inadequacies. After 10 years, Jane has plenty of work and respect in the...

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