Come April 1, 2009, New York will have  new rules of professional responsibility. 

“It is a tremendous relief to now speak the same language as the rest of the country,” said Steven C. Krane, chairman of the New York State Bar Association’s Committee on Standards of Attorney Conduct, which proposed the revisions. “The code is dead. Long live the rules.”

The institutions of change love their own work so very much.  The new rules certainly go a long way toward clarifying how lawyers can avoid malpractice, and protecting lawyers from doing things like disclosing client confidences when it’s societally convenient.  Hooray for the new rules.  Our backs are covered.

But there’s one word you won’t find in the new rules.  Zeal.

No longer is an attorney obliged to zealously represent his client.  Zeal is dead.

The new rule requires a lawyer to be “competent”.  Rule 1.1(a) states:

A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

No zeal.  As for competence, the new rules fail to provide much by way of beef, even watering down this tepid term with the words “reasonably necessary.”  Luke warm seems like it would be a step up from this new rule.  Zeal?  Not even close.  Competent representation means more than incompetent representation.  Is that it?  We’re ethical as long as we aren’t incompetent?  That’s how high the grocery clerks have set the new bar?  I’m so proud to be a lawyer.

I’m sure that bar association policy wonks will applaud this major improvement in consistency.  Consistency, after all, is one of their most prized goals.  Good or bad, it’s always best to be consistent from the standpoint of grocery clerks.

But gladiators fight to win.  They don’t fight dirty, but they do fight hard.  Is it “reasonably necessary” to fight hard?   For those of us who came of age in the law when the duty was to zealously defend our client, we knew that zeal required us to go above and beyond the mundane, yeoman approach.  It was not good enough to be simply good enough.  We considered it a personal disgrace to fail to give every case our best effort.

But that’s no longer the rule.  Zeal is dead, the new rules say.  Still, I plan to zealously defend my clients, and to write about our work as if zeal was still an obligation.  When the grocery clerks make it unethical to zealously defend our clients, limiting lawyers to mere “competent” representation, I will hang it up.  I don’t know how to do less than zeal.