The Zeal Shortage

Although the duty of zealous advocacy enjoys nominal approval in most state bar rules and the secondary literature, today the majority of writings about zeal in the practice of law present zeal in a negative light. Critics use this word to object to lawyers' dishonesty, hyperpartisanship, aggressive or confrontational work styles, rudeness, and disregard for the interests of adversaries, the courts, and the public. This article, part of a Hofstra University symposium, builds on the literature that praises zealous advocacy (much of it written by symposium honoree Monroe Freedman) to identify a shortage of zeal in American legal practice and identifies legal education as a culprit. Arguing that new rules of professional responsibility could enhance the supply of zealous advocacy, the article endorses the Massachusetts variation on Model Rule 1.3, and presents a new Model Rule 1.18(e) with comments.