FEATURE ARTICLE: Loyalty & Discretion
Author: Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Legal Editor: Carrie E. Parker
This article is featured in Volume 7, Number 7 of the Legal Ethics and Malpractice Reporter, published July 31, 2026.
Many lawyers will be surprised to be told that the term “loyalty” does not actually appear in the text of the Rules of Professional Conduct. It does appear in several explanatory comments, but not in the text of the actual Rules.
Loyalty is probably most commonly considered with regard to conflicts of interest. Indeed, Comment 1 to KRPC 1.7, Conflict of Interest: Current Clients, invokes the term immediately, stating:
Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests.
But conflict analysis is not the only place for loyalty in legal ethics.
The obligation of loyalty to one’s client is one of the underlying principles of most of the Rules found in the Code. It dates back, in its most extreme form, to a statement by Lord Brougham during his defense in the English Parliament of the Case of Queen Caroline in 1820:
…[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means-to protect that client at all hazards and costs to all others, and among others to himself-is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other; nay, separating even the duties of a patriot from those of an advocate, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client.
This statement is probably one of the most extreme positions to be taken on the duty of loyalty owed by a lawyer to her client.
In contrast to Lord Brougham’s extreme position, the Rules of Professional Conduct take a substantially softer approach. For example, Comment 1 to KRPC 1.3, Diligence, explains:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.
A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued. See Rule 1.2.
(emphasis added). This requirement of diligent advocacy is worlds away from Brougham’s concept of diligence, especially since it leaves a great deal of discretion to a modern lawyer as to how far to go in the representation.
This difference between Comment 1 to Rule 1.3 and Lord Brougham’s ideal of total loyalty is more than a history lesson. It reflects a significant change in perspective regarding what role a lawyer is meant to occupy. It is also gaining importance as judges are speaking out against lawyers and litigants bringing litigation for political purposes or to harass others without any real expectation of winning–or to gain some advantage separate from the claims made in the case. Often, this type of litigation is brought with the knowledge that a settlement would be preferable for the defendant than a long, drawn-out expensive suit with negative publicity.
Like Federal Rule of Civil Procedure 11(b), many Rules of Professional Conduct are designed to stop such litigation. KRPC Rule 3.3 prohibits frivolous lawsuits:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
However, laws are rarely so clearly drafted that frivolity of a claim is beyond contestation. Indeed, Comment 1 to KRPC 3.1 is quite sensitive to this fact:
The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.
A good lawyer can often press a claim or defense that borders on abuse of process which, while not brought for the purpose of adjudicating a real dispute, is pursued for other external reasons—such as publicizing a cause or gaining notoriety.
Judges are rightly hesitant to declare such borderline cases frivolous or sanction lawyers in such circumstances. In essence, a lawyer being asked to bring or defend litigation that is borderline is left to her own judgement and discretion whether to take the representation on. This exercise of judgement is extremely important for the lawyer and the system of justice.
Why would a lawyer take on a questionable, borderline case?
The most obvious answer is money. Only corporations, well-funded not-for-profits, and wealthy individuals will bring an expensive lawsuit with little hope of winning. Litigation is almost always quite expensive, and if the target of the litigation lacks the resources to adequately defend, they will often simply settle to avoid the costs of defense. From the lawyer’s perspective, taking on such a case will be profitable. It may also bring in a new client with a real possibility of repeat business or referrals to others; the networking and financial benefits may be great for the lawyer.
Another reason may be that the party seeking representation is a past or present client and refusal to take the dubious case might result in the loss of the client. If a client provides a major source of a firm’s or lawyer’s business, then the possibility of losing that client becomes quite problematic and may incline the lawyer to take on the dubious matter.
A third possibility is that the case, albeit dubious, provides the potential for publicity for the lawyer or law firm. If the case is potentially a high-profile case that will attract media attention, a lawyer may well decide that the representation is worth the exposure, even though the case may not be popular.
Still, when taking on a dubious representation, the lawyer must ensure that she honestly and independently explains the downside of the matter to the client:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
KRCP 2.1.
From the lawyer’s perspective, Rule 1.2(c) provides a “safe harbor” that taking on the representation does not reflect the lawyer’s personal beliefs:
A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
This may protect the lawyer from some degree of public criticism, but that does not mean that negative public opinion will disappear. Nor does it mean that members of the judiciary and the Bar will approve of a lawyer taking on the case in the first place. A lawyer who takes on a dubious case which pushes the boundaries of FRPC 11(b) or KRPC 3.3 and can always claim that, when the law is ambiguous, her ethical duties do not proscribe the representation. But Rule 1.2(c) is not a miracle cure for reputational damage.
When lawyers take on dubious cases, they not only must calculate the personal risk that they may cross disciplinary lines and the reputational risk that the case may alienate future potential clients, but they should also consider what risk they pose to the credibility of the legal system. When the public witnesses dubious cases and questionable courtroom tactics, many blame the system as well as the lawyers involved. This endangers the judicial system’s legitimacy.
READ THE FULL ISSUE OF LEMR, Vol. 7, No. 7
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