The Lawyer Ethics Alert Blog is reporting that the Board of Governors (BOG) voted at its December 2023 meeting to remove the words zealous, and its derivatives from the Florida Bar Rules.
As you know, lawyers often "cite" the principle that there is a duty to represent clients zealously. However, it is interesting to note that the word "zealously" or any variation of it is not found anywhere in the text of the ABA Model Rules (maybe there is a reference to it in a comment somewhere, but not in the text of the rules). Some states have incorporated it in their own rules, but it is not in the Model Rules.
So, it is interesting to see that Florida is taking it out of its rules. And why, you may ask? The answer should not be surprising: because lawyers often used the argument of a duty of zealous representation as an excuse to push the envelope and engage in questionable, and often improper, conduct, particularly in litigation.
And that is exactly what the Florida resolution states. It proposes a new comment to be placed in the Preamble of the rules that states, in part, that "[z]ealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior.” The comment would also refer to a 2000 Supreme Court decision, The Florida Bar v. Buckle, which states, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”
In the end, if the proposed revisions are approved by the Florida Supreme Court, Florida lawyers will be put on notice that unethical conduct under the guise of “zealousness” is a potential violation of the Florida Bar Rules.
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