The Limits of Zealous Advocacy – And the Advantage of Being a Criminal Defense Lawyer

February 11, 2021

By Sara Kropf

As the historic second impeachment trial of Donald Trump continues, there has been a lot of chatter about what defenses his lawyers would offer. His first set of lawyers withdrew from the case a few days before the Senate trial began. They withdrew amid rumors that Mr. Trump “wanted them to make the case during the trial that he actually won the election. To do so would require citing his false claims of election fraud.”

So, can his second set of lawyers make the argument that Mr. Trump actually won the election to defend against conviction?

Sure, they could make the argument. They’d just risk their law license by doing so.

Lots of people commenting on Twitter and cable news networks seem to think that lawyers can (and will) make any argument on behalf of a client. The undercurrent is that lawyers are simply mouthpieces for their clients, routinely untethered by the law or the facts.

In the past two decades, I’ve seen only a handful of lawyers who will say anything to win a case. Most lawyers—the vast majority—understand their ethical obligations and stick to the law and the facts.

The rules of professional conduct make clear that lawyers cannot make any argument on behalf of a client. At times, clients have a hard time with this. Hiring a lawyer doesn’t mean you’ve hired a mouthpiece to spout whatever nonsense you’d like her to say.

But there is a very important advantage for criminal defense lawyers in the ethics rules. And this advantage is why “zealous advocacy” has a very special meaning for lawyers like me.

Reconciling Two Key Ethics Rules – Zealous and Meritorious

There are two rules of professional conduct that a good lawyer must constantly reconcile. (I’m rely on the District of Columbia rules. Insert typical disclaimer that mileage may vary, so check your own rules.)

First, every lawyer has an obligation to be a zealous advocate. According to Rule 1.3, “[a] lawyer shall represent a client zealously and diligently within the bounds of the law.” (Note, the ABA Model Rule is a little different, requiring only that the lawyer act with “diligence and promptness,” but the comment explains 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.”).

Second, a lawyer’s representation is limited by a rule governing “meritorious claims and contentions.” D.C. Rule of Professional Conduct 3.1 says:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.

There are times when a client wants his lawyer to take a position that is not in line with the facts or the law. And those are dangerous times. As the lawyer, you cannot simply agree to make a legal or factual argument without investigating its accuracy and making sure you have a good-faith basis for it.

Investigating the merit of a legal argument is generally straightforward. You research it and find out what law exists in your jurisdiction, what arguments have been adopted by other courts, and so forth. Nothing stops you from advocating a change in the law or that a court rethink its position. There are rules that you have to cite controlling precedent but you can still push for changes in the law.

Investigating a factual argument is less straightforward and this is where it’s very possible that the rules of ethics are crosswise with your client’s wishes. As lawyers, we often have to rely on our client’s representations to us when we make arguments. We can review documents to confirm our client’s statements but there is rarely a document that squarely proves every matter. The comment to Rule 3.1 gives a little more guidance:

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Lawyers, however, are required to inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.

If a client’s position is not supported by the facts, then a lawyer cannot make it. It is that simple. No matter how hard the client pushes, a lawyer has to stand firm.

This simple rule is so much easier said than done. And a good lawyer spends time with her client listening –really listening—to the client’s views and figuring out if there is a way to make the arguments the client wants to make and the arguments that could win the case.

Can that email be read how the client says he meant it? Is there another way to understand the shorthand in a text message? Are there conflicting documents on an issue, so that taking a position is still in good faith because there is some evidence in support of it?

The Special Exception for Criminal Defense Lawyers

That brings us to the special situation of criminal cases. What if there really is not a good faith defense for your client? How do you defend him at trial?

Rule 3.1 includes a special section about criminal cases:

A lawyer for the defendant in a criminal proceeding, or for the respondent in a proceeding that could result in involuntary institutionalization, shall, if the client elects to go to trial or to a contested fact-finding hearing, nevertheless so defend the proceeding as to require that the government carry its burden of proof.

The comment to Rule 3.1 offers more explanation:

[T]he [criminal defense] lawyer is not only permitted, but is indeed required, to put the government to its proof whenever the client elects to contest adjudication. The lawyer’s obligations under this rule are subordinate to federal or state law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this rule.

Criminal defense lawyers not only have the leeway to challenge the government’s proof but the obligation to do so. This obligation exists even when the known facts plainly support conviction or when there is not a good-faith basis for a defense. If a client chooses to go to trial, then he deserves a vigorous defense. The lawyer can (and must) challenge the reliability of an eyewitness’ identification or the memory of the witness who attended a key meeting, or the legality of a wiretap that revealed potential insider trading.

As the Supreme Court explained, “[t]he very premise of our adversary system of criminal justice . . . that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” United States v. Cronic, 466 U.S. 648, 655 (1984). That system would fall apart if criminal defense lawyers could only advance a “meritorious” defense at trial.

Now, there are important strategic reasons why a lawyer may choose not to raise a certain defense or challenge certain evidence at trial. The credibility of the lawyer is often paramount to succeeding. Making silly or frivolous argument could hurt your client in the end.

What About the Impeachment Trial?

Mr. Trump’s impeachment trial is not a criminal trial nor is it even in court. His lawyers are not entitled to the exception in Rule 3.1.

They are still bound by Rule 3.1, though. The impeachment trial is almost certainly a “proceeding” under the rule. I cannot see how any lawyer can stand up in the Senate trial and ethically argue that Mr. Trump won the election or that there was widespread voter fraud. No credible evidence of either position has been offered in any of the many lawsuits filed across the country. Mr. Trump may very much want his lawyers to take those positions, but that’s not a good enough reason to do so.

Even zealous advocacy has its limits.