It is frequently said that a lawyer must be a zealous advocate. The genesis of the statement can be traced back to Lord Brougham who defended Queen Caroline against charges of treason in proceedings in the House of Lords in 1820. Lord Brougham, discovered that while he was Prince of Wales, King George had secretly married one of his mistresses, a Roman Catholic, which “intermarriage” could mean forfeiture of the Crown. Many urged Brougham to be a “good citizen” and promote the kingdom’s welfare by not presenting the evidence which gave Queen Caroline her defense. Brougham’s response was: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons … is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.” Freedman, Henry Lord Brougham and Zeal, 34 Hofstra L. Rev. 1319 (citing to 2 Trial of Queen Caroline 3 (1821)).

That sentiment has lived long, and new lawyers have often been told that they have an obligation under the rules and traditions of our profession to be a zealous advocate for their client. However, under the current New York state attorney regulatory scheme, the New York Rules of Professional Conduct (RPC or Rules) do not actually state that a lawyer needs to be a “zealous advocate”. The word “zealous” is not even mentioned in the Rules.