The Duty to Clients: Checking Zealous Partisanship

• Author: Allan C. Hutchinson
• Pages: 92-113

CHAP TER 6

THE DUTY TO CLIENTS:

CHECKING ZEALOUS

PA RT IS A NSHIP

The core of legal ethics and professional resp onsibility is t he general

duty that lawyers are required to fulf‌ill in dealing with their clients.

Lawyers are under a st rong obligation to put their clients’ interests

ahead of all others and to act as zealous partisa ns on their behalf.

While there is little di sagreement about the existence of this duty to act

zealously for clients, there is considerable debate around the limits to

which such zeal ought to go in light of the interests of other part ies and

the legal process itsel f. As Macaulay put it caustica lly in complaining

about lawyers: “Is it right that a man . . . will do for money what . . . he

would think it wicked and in famous to do for an empire.”1 The chal-

lenge is not only to understand the force and requirements of lawyer s’

duties to their clients but to work towards an appreci ation of what the

limits might be on such a single-focused duty. While loyalty and trust

are important qualities, it is important to question to whom or what

the lawyer is bei ng loyal and trust worthy. Indeed, it is in the efforts to

chart the lim its upon lawyers’ duties to their clients that the study of

legal ethics and professiona l responsibilit y is at its most challeng ing

and controversial.

I begin this chapter with a broad inquir y into the duties which

lawyers owe to others generally. After that, I explore the nature and

rationale of lawyers’ general duty to act as ze alous partisans on behalf

1 G. Macaulay, The Works of Lord Macaulay, ed. L ady Trevelyan (Bo ston: n.p.,

1900) at 163.

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The Duty to Client s: Checking Zealous Part isanship 93

of their cl ients. In t he third section, I w ill unpack the general duty and

explain its various and discrete components. Next, I will examine t he

limits that are place d on lawyers’ zeal on behalf of their clients by their

duties to the courts and t he profession generally. And, in the f‌ifth and

f‌inal section, I tack le the diff‌icult and reve aling issue of whether and to

what extent lawyers ca n or should take into account the interest s of op-

posing partie s or other persons. Throughout the chapter, the emphasis

will be on the need to bal ance zealous partisanship again st competing

responsibilities.

A. LAWYERS’ DUTIES

While it is essenti al to identify who is and who is not a client as the trig-

gering event for most legal and ethical respon sibilities, it is also import-

ant to emphasize that lawyers’ legal and ethica l obligations do not start

and f‌inish with cl ients; there are def‌inite obligations to non-clients.

Moreover, although the primary relationship is t hat between lawyers

and their clients, the dutie s it gives rise to are not absolute; they are

foundational and fundamenta l, but they are not all-consuming. There

is a spectrum of differing ethic al duties and legal obligations imposed

on lawyers which wil l sometimes vary in weight and ef fect with the

informing and pract ical context. As recent developments make cle ar,

the identity of a client is far f rom fast or f‌ixed. The landscape of profes-

sional responsibilit y has become populated by all sorts of characters

and caricatures, including current clients, former clients, quasi-clients,

non-clients and organizat ional clients. It is a veritable dramatis personae

who morph in and out of their different identities and occ asionally hold

more than one personalit y at a time. Consequently, in thinking about

legal ethics and responsibilities, it is prudent to treat the lawyer-client

relationship as a shifting and multi-dimensional connection. If it were

a light switch, it would be more of the dimmer variety t han the trad-

itional on/off kind.

It is a common, unspoken and false assumption in the literature

and practice that law yers enter into relationships with t heir clients on

a clean slate. The fact is that future cl ients are already owed a con sider-

able range of duties as non-clients and the se are simply added when

persons become clients. Although often overlooked and ignored, there-

fore, there are many duties which law yers have independent of their re-

lationship w ith clients. Like all profes sionals, they owe a series of duties

to the public at large, to individual s with whom they have contact, and

to their professional communitie s and colleagues. These legal obliga-