We’ve all made mistakes

I have practiced in divorce industry for more than 20 years now. At the start of my career when I was young and naïve, I made my fair share of mistakes. I am not proud of these mistakes. But, I would like to think as a more seasoned practitioner I have learned from them.  Hopefully, my clients are getting a better attorney than they would have gotten from me 15 years ago.

Zealous Advocacy vs. The Dolphin Lawyer Philosophy

Sometimes as attorneys, we mean well to follow legal ethics rules and the important principle of zealous advocacy.  But sometimes, it can seem like we are doing more harm in the world than good. In fact, this reality of doing more harm than good caused a bit of a personal crisis for me early on. I developed my Dolphin Lawyer philosophy as a way of being a capable advocate for my client without having to be a mindless shark.

I now work harder to be more humane and sensitive to the real issues of a divorce – pain, sadness, fear, family, children, etc. – in a way that brings some basic humanity to the transaction leaving my clients better off financially and emotionally.  Most importantly, I’m happier.

It’s my own personal Hippocratic Oath. I will use my craft to help people improve my client’s situation. I will not use my craft to do harm.

A Hippocratic Oath of doing no harm may seem at odds with the concept of “zealous advocacy” young law students are taught in their legal ethics classes.  Young lawyers are taught to go to war in the “crucible” of litigation.

We see pictures of gladiators or mercenaries doing battle. We’ve all seen some of the advertising on billboards out there designed to build on this warfare notion. Some attorneys unfairly capitalize on their clients’ fear and anger by promising “aggressive advocacy” or to “fight” complete with scowling attorney faces and imagery of violence.  Aside from unappetizing, such imagery strains the boundaries of legal ethics.

Don’t lose touch with your own humanity.

In portraying ourselves as emotionless mercenaries paid to do battle at any cost, we lose an important part of our basic humanity. As a result, we do a terrible disservice to the public. I know too many very capable attorneys, who have lost touch and are out of harmony with their basic humanity. This can lead to profound anxiety and deep depression. People lose touch with themselves. It can destroy them internally- not to mention the damage it can do to society at large.

One must not forget that legal ethics are the minimum standards by which an attorney should practice.  They are by no means a ceiling of good behavior.  Rather, they are a floor.  Sinking below the standards can jeopardize a lawyers license.  But perhaps there is a higher standard to which an ethical attorney should aspire. Maybe we can do better than the lowest common denominator.  I say, do better than the minimum requirements of legal ethics – aim higher!

This scene from Marriage Story, is a good example of what can go wrong when attorneys lose site of the bigger picture.

Many of the various bar associations and institutions have grappled with these legal ethics concern by crafting ethical cannons or non-binding guidelines.

The San Diego Car Association released “Attorney Civility and Practice Guidelines”. Similarly, the American Bar Association even has a page on its website listing a myriad of Professionalism Codes designed to lift the practice.

In 2014, the California Supreme Court approved language for the oath new attorneys take in California. It is found in Rule 9.7 of the California Rules of Court. It reads,

“As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”

See also:

Oath of Admission to the Florida State Bar

Sacramento County Bar Association: Standards of Professional Conduct

United States District Court, Central District of California Civility and Professionalism Guidelines

Hippocratic Oath for Lawyers?

As mentioned, the Hippocratic Oath taken by physicians may serve as a guide to help make our profession into more of a healing art and less of an art of warfare. One of the primary pledges in the Hippocratic Oath is,

“I will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous.”

Perhaps a more famous clause, which is often incorrectly attributed to the Hippocratic Oath, is actually from Hippocrates’ Of the Epidemics.  It reads:

“The physician must be able to tell the antecedents, know the present, and foretell the future — must mediate these things, and have two special objects in view with regard to disease, namely, to do good or to do no harm.”

With either charge, the point is to avoid causing harm as much as possible. Lawyers would do well to take a page from Hippocrates for their own legal ethics and be more mindful to do more good than harm.  In short, a lawyer is wise to balance zealous advocacy against the harm it can cause.

To that end, I compiled my own list of questions that lawyers should ask themselves before using a particular procedure or tactic.  I’ve used this list throughout my career.

Questions Every Family Law Attorney Should Ask Themselves Before Employing a Procedure or Tactic

• Will the tactic or procedure help to serve my client’s actual legal interests?
• Which short term benefits will result from the use of the procedure or tactic?
• What long term benefit will result from the use of the procedure of tactic?
• Which short term harms will result from the use of the procedure or tactic?
• What long term harm will result from the use of the procedure or tactic?
• Is the harm caused by the implementation of this tactic outweighed by the benefits?
• What unintended consequences might I unwittingly be unleashing as a result of employing this tactic or procedure?
• What effect will the choice to implement this tactic or procedure have on the innocent children in the case.
• Will this tactic or procedure affect any important “non-legal considerations” such as emotions, relationships, family priorities, etc.?
• Am I acting out of an emotional response and/or a need to compete, or am I truly acting in my client’s interest?
• Does my client understand what I am about to do?
• Finally, if the client understands what I am about to do, have I allowed for my client’s informed consent by discussing with her all of the questions discussed above?

Aiming for a Higher Standard

I try my best to thoroughly analyze my professional choices using this list.  Taking time to really think before acting is crucial. As a result, I sleep well at night knowing that I have tried my best to be a good person.  Of course, this is not to say that I am perfect.   Rather, it means that I am aiming high and striving to do right by my fellow humans.  Care to join me?