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Effort to eliminate ‘Z’ words from Bar rules takes another step

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'There were a number of us that felt that the terms, zeal, zealous, zealous advocacy, as they apply to our professional rules, should be at a minimum questioned'

Andrew Sasso

Andrew Sasso

An effort to scrub so-called “Z” words – “zeal,” “zealous,” and “zealously,” – from the Bar rule book has cleared another hurdle.

At a July 27 meeting in Sarasota, the Rules Committee voted unanimously to approve a Real Property, Probate and Trust Law Section proposal to amend Chapter 4 Rules of Professional Conduct.

The Board of Governors has yet to consider the proposal and the Supreme Court will make a final determination.

Tampa lawyer Larry Miccolis told the Rules Committee that the RPPTL’s Professionalism and Ethics Committee formed a subcommittee in April 2022 to study the issue.

“There were a number of us that felt that the terms, zeal, zealous, zealous advocacy, as they apply to our professional rules, should be at a minimum questioned,” Miccolis said.

Miccolis was quick to credit Professionalism and Ethics Chair Andy Sasso with spearheading the proposal.

The subcommittee took a very “structured” approach over the last year and half, Miccolis assured the Rules Committee.

A former Marine Lt. Colonel who headed a helicopter squadron, Miccolis teaches Florida administrative law at Stetson.

“We looked at the term’s etymology, the history of the terms, caselaw, other states’ jurisdictional rules,” he said. “Z terms have a long history. But today, we found that there is more often a negative treatment associated with negative behaviors and labels.”

The proposed amendments would remove references to “Z” words from the Preamble to Chapter 4 and the comment to Rule 4-1.3 — and add a comment that Miccolis said would offer an explanation and some historical perspective.

Under the proposal, a sentence in the Preamble, “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system,” would instead state, “As an advocate, a lawyer asserts the client’s position with commitment and dedication to the interests of the client under the rules of the adversary system.”

Another sentence in the Preamble, “Zealous advocacy is not inconsistent with justice,” would instead state, “Commitment and dedication in advocacy are not inconsistent with justice.”

A sentence in the comment to Rule 4-1.3 (Diligence), “A lawyer must also act with commitment and dedication to the interests of the client and with zeal and advocacy on the client’s behalf,” would simply state, “A lawyer must also act with commitment and dedication to the interests of the client.”

A proposed new comment would appear in the Preamble under the subheading, “Conduct.”

“All prior references in this chapter to a lawyer’s duty to act zealously, as a zealous advocate, or with zeal upon the client’s behalf have been removed. Zealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior,” the comment would state.

The comment continues by referring to a 2000 Supreme Court decision, The Florida Bar v. Buckle, in which the justices wrote, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

Last year, Sasso told the News he was prompted to launch the review by a 2022 disciplinary case, The Florida Bar v. Schwartz, where the justices again cited a “cloak of purported zealous advocacy.”

“It’s not just the legal profession, people in general relate someone who is ‘zealous’ to someone who is a zealot,” Sasso said. “And I don’t know anyone who would say that someone being a zealot is positive.”

The status of “Z” word references poses another potential challenge, Sasso argues.

“You get into this whole thing, there is no requirement to provide zealous representation, because it’s in the comment, and that’s only aspirational,” he said. “I think it causes a lot of confusion for lawyers.”

The RPPTL’s Executive Council approved the proposed amendments at a July 11 meeting, Miccolis told the Rules Committee.

Michael J. Gelfand

Michael J. Gelfand

Board member Michael Gelfand, a veteran West Palm Beach lawyer, told the Rules Committee that he was far from sold on the proposal, at least initially.

“And that was because I had grown up with this,” he said. “And after decades of it, it became this was what we were supposed to do, to protect our clients and our citizens.”

A review of Bar disciplinary history helped change his mind, Gelfand said.

“But stepping back…watching what some of our peers have done, is the recognition that we have the words ‘zealous’ or ‘zealot’ for a reason, and it’s not a positive reason,” Gelfand said. “How that got ingrained [in the rules] is still a wonder to me, and I changed my position, 180 degrees.”

Gelfand said he is satisfied the proposed changes will not diminish a lawyer’s ability “to defend clients when the courts and everyone else may not think that it’s the right thing.”

“But there is a boundary between what is appropriate professionalism and being a zealot, which is beyond the pale,” Gelfand said.

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