Associate Attorney Anthony Sparks discusses the different emphasis the Wisconsin Supreme Court Rules place on zealous advocacy for clients in contrast to the model rules set forth in ABA Rules of Professional Conduct.
Zealous advocacy is often invoked as a cornerstone of the legal profession and used as a guiding principle for Wisconsin lawyers. However, there are differences in how the concept of zealous advocacy is defined and applied in different legal contexts and jurisdictions. This contrast is evidenced by the removal of references to zealous advocacy in the Wisconsin Supreme Court Rules when the court adopted the American Bar Association (ABA) Rules of Professional Conduct model rules.
The Wisconsin Supreme Court Rules require lawyers to provide competent representation to their clients, which includes being zealously protecting and pursuing a client’s legitimate interests, within the bounds of the law. However, whenever the rules refer to zealous advocacy, they temper this term by emphasizing the lawyer's ethical obligations to the court and to the administration of justice. In fact, Chapter 20 of the Supreme Court Rules only utilizes the term “zeal” or “zealous” four times, all of which either occur in the preamble or a comment. Further, the rules require lawyers to be truthful in their dealings with the court and to avoid engaging in behavior that is intended to delay or obstruct the proceedings.
In contrast, the ABA Rules of Professional Conduct, pursuant to Rule 1.3 titled “Diligence,” emphasize the importance of maintaining client confidentiality and loyalty, and require lawyers to "zealously advocate" for their clients within the bounds of the law. However, the Wisconsin Supreme Court’s analogous rule, Wis. Sup. Ct. R., 20:13 explicitly drops the model rules zealous advocacy language and requires a lawyer to simply “act with reasonable diligence and promptness in representing a client.”
The comment for the diligence rule provides that “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. A lawyer is not bound, however, to press for every advantage that might be realized for a client... The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” The ABA Rules of Professional Conduct, on the other hand, place a greater emphasis on the lawyer's duty to their client.
Another key difference between the two sets of rules is the extent to which they address the use of tactics that may be considered unethical or unfair. The Wisconsin Supreme Court Rules explicitly prohibit lawyers from engaging in behavior that is intended to delay or obstruct the proceedings, while the ABA Rules of Professional Conduct are more general in their guidance on this issue.
Ultimately, the differences between the Wisconsin Supreme Court Rules and the ABA Rules of Professional Conduct reflect the complex nature of the legal profession and the competing obligations that lawyers must navigate. While both sets of rules emphasize the importance of competent and diligent advocacy, the Wisconsin rules reflect a greater emphasis on the lawyer's ethical obligations to the court and to their clients while treating all persons involved in the legal process with courtesy and respect.
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