Florida Bar News – Do ‘Z’ Words Belong in Bar RULES?

     Andrew Sasso

A Real Property, Probate and Trust Law Section committee is considering a proposal to scrub so-called “Z” words — “zeal,” “zealous,” and “zealously,” — from the Bar rule book.

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

If the committee’s proposed revisions were adopted, Florida would join at least 13 other states, including Georgia, New York, and California, that have removed “Z” words from their rules and commentary.

Sasso acknowledges that the words “zeal,” “zealous,” or “zealously,” don’t appear in Florida Bar rules — they appear in the preamble to Chapter 4, and in a comment to Rule 4-1.3 (Diligence).

But words matter, Sasso said, especially in the legal profession.

“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.”

Sasso said he decided to take the issue to his committee in April, after the Florida Supreme Court issued a ruling in a disciplinary case, The Florida Bar v. Schwartz, 334 So. 3d 298 (Fla. 2022).

“Finally, we reiterate that the requirement to provide zealous representation, as contemplated under our ethical rules … does not excuse engaging in misconduct, irrespective of one’s intent to benefit the client,” the justices wrote. “As we have previously observed, “[w]e must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

Sasso said he has been thinking about the issue since his first semester of law school, and his fiancé — now wife — gave him a copy of Black’s Law Dictionary.

The only definition he found was a disparaging reference to a witness.

“It says an untechnical term, denotes a witness on a trial of a cause, who manifests a partiality for the side that is calling him, and an eager readiness to tell anything which he thinks may be of advantage to that side,” Sasso said.

A recent article in “Ethics and Professionalism,” a publication of the ABA Litigation Section, argues that “Z” words should be removed from comments to ABA Model Rules of Professional Conduct.

The authors warn that it “contributes to the problem of lawyers using a misinterpretation of the Model Rules to justify their own uncivil and even unethical behavior — after all, the ordinary meaning of the term ‘zealot’ is a person who is fanatical and uncompromising.”

In Florida Bar rules, the Preamble to Chapter 4, states, in part, that “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”

The Professionalism and Ethics Committee proposed revisions would 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 states, “Zealous advocacy is not inconsistent with justice.”

The committee’s proposed revision would state, “Commitment and dedication in advocacy are not inconsistent with justice.”

The final “Z” word reference appears in the comment to Rule 4-1.3 (Diligence). It states, in part, “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

The committee’s proposed revision would simply remove the last nine words of the sentence — “and with zeal in advocacy upon the client’s behalf.”

The committee is also proposing to introduce a word that has never appeared in a Florida Bar rule or comment — “kindness.”

The proposed revision would add the following nine words to the final sentence in the comment to Rule 4-1.3 — “kindness and punctuality are not inconsistent with diligent representation.”

Sasso said he was inspired by an historical document a subcommittee chair recently shared with him — a 1922 letter from Marine Corps Commandant John A. Lejeune to his officers.

“Be kindly and just in your dealings with your men,” Lejeune wrote.

Sasso was intrigued.

“I thought that was really interesting,” he said. “You’ve got the Marine commandant asking his men to be just and kind.”

Sasso stressed that the proposed revisions are only a draft. If the committee approves them, they won’t be presented to the section’s executive council for a final vote until December. After that, the Board of Governors would weigh in. The Supreme Court would have the final say.

Jim Ash, Florida Bar News (2022, June 08) https://www.floridabar.org/the-florida-bar-news/do-z-words-belong-in-bar-rules/