“Lawyers and the Problem of ‘Zeal,'” By Bruce Frohnen

“First we will kill all the lawyers.” Thus spoke ” Dick the Butcher ” from Shakespeare’s Henry VI, part 2, Act 4, Scene 2, in suggesting ways his band of pretenders to the throne would make society better. While I don’t always agree with my colleague Bruce Frohman I do in this instance and with lament. But “serial killers” ouch!!

Nomocracy In Politics

It would be easy to blame American lawyers for their own bad reputation—enjoying “public approval” somewhere in the range of used car dealers, members of Congress, and serial killers. Easy, and not entirely inaccurate. That said, Americans themselves are partly to blame for the sorry state of the legal profession. How so? The classic statement of the problem is that we all think that lawyers should not be such “sharks,” willing to do anything and everything for their clients, but whenever we are involved in a dispute, we want to hire the most vicious lawyer we can find to serve our own interests.

At the heart of the problem is the idea of “zealous” representation. Pretty much every state’s rules regarding lawyer conduct are rooted explicitly in the notion that they must represent their clients “zealously.” But, as many commentators have pointed out over the years, “zealous” is not generally…

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