Charles Silver, ‘A Private Law Defense of the Ethic of Zeal’

Moral philosophers object to the ethic of zeal, also known as the fiduciary duty and the principle of partisanship, which requires a lawyer to act solely for the benefit of a client and to ignore any adverse effects that lawful actions have on third parties. For example, when representing a landlord, a lawyer may not refrain from evicting a tenant family that is behind on the rent for fear that the children will wind up on the street. Because harms inflicted on third parties normally bear on moral assessments, philosophers contend that lawyers who ignore them are amoral, immoral, or morally stunted.

Although a few writers have defended the ethic of zeal, most notably the recently deceased Monroe Freedman, their efforts have enjoyed only limited success. Freedman persuaded moral philosophers to give criminal defense lawyers considerable leeway to ‘fight dirty’, but had little impact on their opinions of attorneys who represent clients in other contexts. More recently, writers like Tim Dare and W Bradley Wendel have offered accounts of lawyers’ professional responsibilities that support zealous representation of interests that qualify as legal entitlements, but not of naked interests, even when advancing naked interests is lawful.

This article offer a defense of the ethic of zeal that is grounded in the common law of agency, the ethic’s historical source, that encompasses all interests and applies in all contexts, and that also applies to agents who are not lawyers. The central point of the defense is that the fiduciary duty preserves the normative basis of agency law, which attributes agents’ loyal actions to principals’ because principals consent to representation. When lawyers act disloyally, as moral philosophers think they often should, the moral basis for attribution disappears and the connection to agency’s deeper utilitarian purpose is lost.

Silver, Charles, A Private Law Defense of the Ethic of Zeal (February 5, 2016). U of Texas Law, Law and Econ Research Paper No 638.

First posted 2016-02-08 07:01:23

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