The Duty to Clients: Checking Zealous Partisanship

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

CHAPTER 6

THE DUTY TO CLIENTS:

CHECKING ZEALOUS

PA RT IS A NSHIP

The core of legal ethics and professional responsibility is the general

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

Lawyers are under a strong obligation to put their clients’ interests

ahead of all others and to act as zealous partisans 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 itself. As Macaulay put it caustically in complaining

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

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

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

duties to their clients but to work towards an appreciation 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 being loyal and trustworthy. Indeed, it is in the efforts to

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

legal ethics and professional responsibility is at its most challenging

and controversial.

I begin this chapter with a broad inquiry into the duties which

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

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

1G. 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 isanship93

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

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

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

duties to the courts and the 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 parties or other persons. Throughout the chapter, the emphasis

will be on the need to balance zealous partisanship against 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 ethical obligations do not start

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

Moreover, although the primary relationship is that between lawyers

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

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

is a spectrum of differing ethical duties and legal obligations imposed

on lawyers which will sometimes vary in weight and effect with the

informing and practical context. As recent developments make clear,

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

sional responsibility 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 personality 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 than the trad-

itional on/off kind.

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

and practice that lawyers enter into relationships with their clients on

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

able range of duties as non-clients and these 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 individuals with whom they have contact, and

to their professional communities and colleagues. These legal obliga-