Disciplinary Rule 7 of the 1969 American Bar Association Code of Professional Responsibility was captioned "Zealously Representing Clients within the Bounds of the Law." The title to Disciplinary Rule 7-101 was "Representing a Client Zealously."

Since then, however, "zeal" has been removed from the ABA Rules of Professional Conduct. And the California Rules of Professional Conduct have no black-letter codification of "zeal."

Still, many lawyers continue to routinely use the phrase "zealous representation" and firmly believe that nothing less is required of them. Some California cases even reference a general "duty of zealous representation." What does it mean then that this concept of zeal has so permeated the legal culture, and does the loss or lack of codification of "zealous representation" make a difference?

In our view, what is critical is not the presence or absence of an express reference to zeal. Rather, what is critical is the need for a discussion and debate about the desirability of those qualities that are sometimes lumped together under this catch-all term. In other words, lawyers should evaluate the line between excessive lawyer conduct (exercised in the name of zeal) and the type of behavior our clients, the courts and the public may properly expect.

One way to begin the assessment of this issue is to look at the matter historically. Canon 15 of the 1908 ABA Canons of Professional Ethics was entitled "How Far a Lawyer May Go in Supporting a Client's Cause." Canon 15 asserted, among other things, that a lawyer owed "entire devotion to the interests of the client [and] warm zeal in the maintenance and defense" of the client's rights. Canon 15 borrowed that language from the 1887 Code of Ethics of the Alabama State Bar Association (the country's first state bar ethics code), which provided in part:

"An attorney owes entire devotion to the interest of his client, warm zeal in the maintenance and defense of his cause ... No sacrifice or peril, even to loss of life itself, can absolve from the fearless discharge of this duty... The attorney's office does not destroy man's accountability to his Creator, or loosen the duty of obedience to law, and the obligation to his neighbor; and it does not permit, much less demand, violation of law, or any manner of fraud or chicanery, for the client's sake."

While Canon 15 did not include a reference to accountability to one's creator or to obligations to one's neighbors, Canon 15, nonetheless, began with the assertion that "Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class ... than does the false claim, often set up by the unscrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client's case."

In other words, the ABA history of devotion to "warm zeal" reflects the view that zeal is a good thing, but (a) zeal has its limits, and (b) unlike the views of some toward winning in sports, it certainly is not the only thing. This should not come as a surprise because even under the best of interpretations, a profession-wide embrace of "zeal" could only be aspirational. If the law of averages means anything, it means that when all is said and done, only the rarest of individuals will always be able to give 110 percent or 120 percent of "average" to every client on every matter, and such goals are clearly out of reach for California's 200,000-plus lawyers as a whole.

Notwithstanding the fictional women, men and children of Garrison Keillor's Lake Woebegon, we cannot all be strong, beautiful and above average.

But is zeal a good thing? Our answer: often, but not always.

At our best, lawyers are a thoughtful, creative and hard-working lot. Other things being equal, the public, the courts and the bar generally commend lawyers who go the extra mile and take extra care to do the best possible job. In addition, most lawyers recognize and appreciate superior work by others when they see it.

This does not mean, however, that the sky is the limit. Even under the 1969 ABA Model Code, for example, the phrase "zealous representation" was followed by an essential qualifier, "within the bounds of the law." Cf. People v. Boulden, 126 Cal.App.4th 1305 (2005) (stating that a lawyer's duty "'to represent his client zealously'" must take place "'within the bounds of the law'") (citation removed).

If, in other words, it was and is illegal for nonlawyers to defraud investors or to shred documents that are subject to a subpoena, no resort to duties allegedly owed to clients could ever justify these actions.

Even in the criminal defense context, when the lawyer's commitment to a client should be at its maximum, the ends typically do not justify the means when illegal or unethical conduct is involved. Even if a zealous criminal defense lawyer believes that the state's eyewitness identification of the defendant is weak and may lead to conviction, the lawyer cannot have another individual sit at counsel table as if that individual were the client in order to trap the state's witness into a false identification. See, e.g., ABA Informal Op No 914 (1966).

In other words, conduct that is illegal or that would require a lawyer to violate a Rule of Professional Conduct cannot be justified as zealous representation. And lawyers generally are authorized by the rules to refuse to engage in conduct that may cross one or both of these lines, even though a good faith argument can be made that no violation would occur.

Nor are these the only potential or potentially desirable limitations on zeal. The so-called professionalism movement was propounded by those who believed it was necessary to counteract what they saw as an outbreak of excessive zeal that sometimes was and is referred to as "Rambo lawyering." In fact, it sometimes seems that the answer to the question of whether or when excessive zeal is present depends, like beauty, upon the eye of the beholder.

At the end of the day, however, we believe there is such a thing as excessive or unprofessional zeal, and we suggest the following three categories as a starting point for further discussion within the profession.

Zeal coupled with inadequate factual or legal knowledge: Sooner or later, most of us meet this kind of zealot — the true believer in the client's cause who has not done the homework. This kind of misplaced zeal may be entirely within the bounds of the law; for example, the legal positions taken by such a lawyer may or may not be technically frivolous. Nonetheless, this kind of lawyering wastes time and money.

Zeal coupled with inadequate objectivity: We have all met this kind of zealot, too. We need to be careful, however, to distinguish between a lawyer with a personal lack of objectivity on the one hand and a lawyer who is personally objective but has an unduly aggressive or querulous client on the other. The former disserves his or her clients and the system at large. The case against the latter is less clear. Although a lawyer with an overly aggressive client can and arguably should remonstrate with the client about whether the client's chosen course makes sense, we believe that a lawyer whose client knowingly, and in spite of long odds, wishes to press ahead should not generally be condemned for excessive zeal. Our view is consistent with rules such as former Disciplinary Rule 7-102(A)(1), which only prohibited lawyers from taking an "action when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

Zeal coupled with too much offensive personality: This category covers the unnecessarily if not also counterproductively rude and disrespectful lawyer. Cf. Strowbridge v. City of Chiloquin, 277 P 722 (Or. 1929) ("Abuse is not argument; calumniation is not convincing; defamation is not determinative of an issue; perversion of speech is not persuasive.").

Lawyers must, in any event, be competent and diligent. As we hope these three categories reflect, the separation of good from bad zeal is not always easy. Determining the precise point at which too much of something transforms what would otherwise be a good thing into a bad thing can be very difficult. Moreover, a resort to rhetorical and effectively conclusory phrases, such as a description of lawyers as officers of the court, is equally unhelpful. Nonetheless, this is a discussion or debate that we, as a profession, need to encourage.