As a I prepared to present at the “Prepare to Thrive Seminar” given at the Suffolk County Bar (my topic was the “American Lethal System: When Conflict Turns Deadly”), I was surprised and relieved to learn that the term “zealousness” had been removed from the New York State Rules of Professional Responsibility. I was not alone in my ignorance, as I surveyed the members in the audience and learned that they too were not aware of its removal. This is ironic because we were discussing lawyer competency and the importance of staying current with the changes in the law. However, this particular change wasn’t new. In fact, as I began to search for the “zeal,” I learned that it went missing in 2009, when the rules of Professional Conduct superseded the former Disciplinary Rules of the Code of Professional Responsibility. It was then that the proposed rules were adopted by the state bar in piecemeal fashion in 2006 and 2007; and it was then that the proposed rules were forwarded to the Chief Judge of the Court of Appeals and the presiding justices of the four Appellate Division Departments for their final review and approval. But when that approval came in mid-December 2008, the word “zeal” had disappeared. There is no apparent explanation for its intentional banishment.
I believe that the disappearance of zeal was made in consideration of the deleterious effects this concept has had on the well-being of lawyers. (American Bar Association (2018), Report from the National Task Force on Lawyer Well-Being, Chicago, Ill.). The word “zeal” is innocent enough. It means, “a strong feeling of interest and enthusiasm that makes someone very eager or determined to do something.” (Webster-Merriam, 2011). The word becomes more lethal when it becomes injected into the adversarial system.
When I entered law school, the idea of two gladiators fighting in the courtroom excited me. The TV show “LA Law” provided me with inspiration. I wanted to be that zealous advocate (e.g., Arnie Becker). However, something happened on the way to the courtroom. In the real world today, numerous studies have found unhealthy side effects in practicing with such zeal. According to a National Task Force on Lawyers Wellbeing, that was conceptualized and initiated by the ABA Commission on Lawyer Assistance Programs (CoLAP), the National Organization of Bar Counsel (NOBC), and the Association of Professional Responsibility Lawyers (APRL), too many lawyers and law students experience chronic stress and high rates of depression and substance use. The Task Force reported that the zealous adversarial nature contributes to the high prevalence of mental health problems such as anxiety and substance abuse, as well as physical problems like high blood pressure and heart disease. “Chronic incivility is corrosive. It depletes energy and motivation, increases burnout, and inflicts emotional and physiological damage. It diminishes productivity, performance, creativity, and helping behaviors” were among its findings. (American Bar Association (2018), Report from the National Task Force on Lawyer Well-Being, Chicago, Ill.).
A zealous adversarial system perpetuates the “chronic incivility” that the Task Force highlighted as a basis for reform. Under the guise of the adversarial mindset, it results in labelling your colleague an enemy. Thus, you must fight with great enthusiasm—zeal—to further your client’s cause. Hence, for many lawyers, your client’s cause becomes your life mission. You are charged to be that gladiator to fight in the courtroom, at all costs. But at what cost? For many, the fighting does not end in the courtroom or between attorneys. It invades the pores and becomes the lens with how we interact in relationships outside the legal community.
At one time, fighting was adaptive in helping the species survive. Our innate alarm system and the ability to respond to predatory animals protected us. This fight or flight dynamic triggered stress hormones and increased blood pressure, and that would propel us in ways that were literally life-saving. However, this response to an adversarial environment was to be short-lived, not chronic. A chronic stress dynamic causes inflammation resulting in numerous mental and physical illnesses, including anxiety and heart disease.
To improve the wellness of the legal profession, the Task Force recommended that all stakeholders develop and enforce standards of collegiality and respectful engagement. Judges, regulators, practicing lawyers, law students, and professors continually interact with each other, clients, opposing parties, staff, and many others. Those interactions can either foment a toxic culture that contributes to poor health or can foster a respectful culture that supports well-being.
By my informal survey, it does not appear that the legal community is aware that we no longer need to fight zealously. This lack of awareness suggests that the legal community needs to be educated about the small change that could provide positive health changes for everyone impacted by the adversarial system. In the place of zeal, the New York State Professional Rules of Conduct provides that a lawyer shall not intentionally:
(1) Fail to seek the objectives of the client through reasonably available means permitted by law; or
(2) Prejudice or damage the client during the course of the representation except as permitted or required by these rules.
(New York State Bar Association (2018), New York Rules of Professional Conduct, Albany, N.Y.).
This language is a significant departure from the concept of zealous advocacy and is consistent with the task force recommendations. Our ethics emphasize not harming the client while representing them. The dropping of the simple word “zealousness” addresses, for the first time in memory, reducing the possibility of harming a lawyer through negative correlates of practicing zeal. If lawyers only knew of this shift in what is expected of them, they might feel a sense of relief which, in itself, could improve their physical and mental health even before adjusting their approach to practice.
Robert Goldman is an attorney and psychologist who work with courts to assist them in reducing high conflict matters.