Supreme Court declines to erase ‘zealous advocacy’ from Bar rules
The Supreme Court has declined a proposal to scrub so-called “Z” words – “zeal,” “zealous,” and “zealously,” from the Bar’s rulebook.
Acting July 30 in In Re: Amendments to the Rules Regulating the Florida Bar Chapter 4, Case No. 2024-0032, justices disagreed with proponents of the rule change who asserted that the term is associated with “negative extremist behavior.”
Proponents argued that too many lawyers cite “zealous advocacy” as an excuse for unprofessional behavior. But justices stressed that the Supreme Court has rejected that defense.
The “public meaning of the terms has changed little since we first adopted the Preamble and rule 4-1.3, and we have made it abundantly clear that zealous advocacy on behalf of a client is not an excuse for any type of misconduct under the rules,” justices wrote.
The ruling pointed to Fla. Bar v. Schwarz, 382 So. 3d 600, 611 (Fla. 2024) (stating that ‘the requirement of providing zealous representation is not a sword to wield as an excuse to otherwise engage in misconduct’).”
One of the proposed amendments focused on the Preamble to Chapter 4, which for decades has noted that “A lawyer’s responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious. Zealous advocacy is not inconsistent with justice.”
The proposal would have replaced the second sentence with the statement, “Commitment and dedication in advocacy are not inconsistent with justice.”
The proposal also would have changed 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,” to simply state, “A lawyer must also act with commitment and dedication to the interests of the client.”
Supporters expressed disappointment, but a prime sponsor praised his Real Property, Probate and Trust Law Section colleagues for a “commendable” effort.
“Many attorneys dedicated numerous hours to working studiously on the proposed amendments,” said Clearwater attorney Andrew Sasso, who chaired the RPPTL’s Professionalism and Ethics Committee. “The commitment to advancing professional and ethical standards within the legal community is commendable and reflects the ongoing dedication to improving the practice of law.”
In the same opinion, the court also declined to adopt amendments to Rule 4-8.6 which would have require lawyers under emergency or indefinite suspension for 91 days or more to sever employment with or financial interests in authorized business entities.
“The rule currently applies to individuals with suspensions lasting 91 days or longer who have been found guilty of committing misconduct and are suspended as part of the discipline for those findings,” the court said. “With emergency or indefinite suspensions, there is no such finding of guilt and the suspension is not related to a finding of guilt. Individuals suspended under these provisions may not yet have had the opportunity to defend themselves against pending discipline allegations. Because of this distinction, we decline to adopt the Bar’s proposed amendments to rule 4-8.6(e).”
In addition to various grammatical changes, the court also amended the comments to Rules 4-1.1, 4-1.6, 4-5.1, and 4-5.3, adding a warning about the necessity to take care in using generative artificial intelligence.
The justices also amend Rules 4-7.13 and 4-7.15 to allow for testimonials of a celebrity who is a current or former client, so long as the testimonial otherwise complies with the rules.
