Rule 1.3 of the Georgia Rules of Professional Conduct dictates that an attorney must act with reasonable diligence in representing their client. Further, an attorney should pursue their client’s legal action no matter the obstacles and may take any lawful and ethical measures necessary in pursuit of same. Last, an attorney should act with great commitment or zeal in advocacy on their client’s behalf.
It is particularly the “zeal in advocacy” that many attorneys conform themselves to, some perhaps to an extreme, sanctionable degree. Historically, the term zealous advocacy usually referred to an attorney doing everything reasonable, within his or her means and authority, to assist a client in achieving the goals identified within the scope of representation. However, in recent years, there has been a noticeable shift in interpretation of the term, where certain attorneys employ tactics—whether reasonable and ethical, or unreasonable and unethical—in order to achieve their perception of success. Those measures may very well be outside of or even contrary to their client’s goals and interests and may even amount to malpractice.
How can you tell a zealous advocate apart from an overzealous one? Though the following are not, by themselves, indications of overzealous advocacy, if it walks like a duck and quacks like a duck, it’s likely an overzealous advocate. An overzealous advocate may try to slip a piece of evidence not admitted during trial to the Court Clerk so that same improperly becomes part of the record. An overzealous advocate may, as part of a motion, submit an affidavit purporting it accurately details the procedural history of the matter yet, is wholly inconsistent with the record. An overzealous advocate may intentionally misquote a transcript during a pretrial conference with the Court.
How do you deal with an overzealous advocate in litigation? Two words: attorney’s fees. O.C.G.A. § 9-15-14(b) authorizes the Court to assess reasonable and necessary attorney’s fees and expenses of litigation in a civil action where it is determined that a party or attorney brought or defended an action which lacked substantial justification; employed certain tactics purely for the purpose of delay or harassment; or, otherwise unnecessarily expanded the proceedings by other improper conduct. Hyre v. Denise, 214 Ga. App. 552, 449 S.E.2d 120 (1994) further provides that a trial court can consider whether any relevant form of improper conduct tied to an opposing party or opposing counsel unnecessarily expanded the proceedings. In the motion requesting an award of attorney’s fees under O.C.G.A. § 9-15-14(b), it is imperative to set out the improper conduct and the specific fees incurred as a result of addressing the sanctionable conduct.
The time has come to reclaim the term zealous advocacy from those who have taken advantage of it. A request for fees to be paid directly by the overzealous advocate is one way to snuff out this growing problem.
Kourtney Bernard-Rance