Primum non nocere (First, do no harm)

Adam Dodek over at slaw.ca suggests that “Every Lawyer Needs a Guardian Angel“:

“The Ottawa Citizen reported last week that a lawyer who posted information about his own client online was caught in a police sting operation. The Ottawa criminal defence lawyer posted a PDF of disclosure that he received from the Crown in a criminal case against his client. The PDF contained blacked-out information and the lawyer used the web to seek someone to help him read the blacked out portions of the disclosure document. A man in Australia saw the post and contacted the Ottawa police who then caught the Ottawa lawyer in a sting operation. Read the Citizen article for full details.”

Dodek concludes:

One of the things that makes our legal profession in Canada a profession, and a great one at that, is the willingness of senior members of the bar to make themselves available to junior members of the bar for advice. I would suspect that this is true across the country. It is unfortunate that the Ottawa lawyer failed to realize that he actually had many Guardian Angels out there, waiting to help him out. Unfortunately, he didn’t know how to find them. Now, hopefully others will.

This is not a story about a newly called lawyer with little or no professional experience:

Here’s David Anber’s flashy website bio: http://www.davidanber.com/david-anber-s-law-office-team/david-anber.

Here’s his glowing lawyerratingz profile: http://www.lawyerratingz.com/ratings/1020284/Lawyer+David-Anber.html

Here’s his recent PR announcement: “Barrister & Solicitor David Anber Marks 1,000th Case With Acquittal

Lawyers encounter professional issues and ethical dilemmas regularly in their practices. Lawyers are expected to fix clients’ problems, competently and cost-effectively. Yet human nature is never divorced from the equation. We all lie. We all exaggerate. We all equivocate. We all tend to ignore our problems and hope they will go away.

Lawyers are not immune to their human nature, but the distinguishing characteristic of lawyering is neither vestigial nor atavistic: Lawyers cannot act in their self-interest at the expense of their ethical obligations. Lawyers owe conflicting ethical duties: to the client, to the court, to the profession and to the public. This is the pith and substance of being a member of the legal profession. Walking this professional tightrope requires more than experience or skill—every decision, every action, every judgement, demands ethical vigilance.

There are no short-cuts or hyperlinks to discharging one’s ethical duties. It is not about common-sense. Common-sense is neither common nor sensical.

Objects in the ethical mirror are closer than they appear.

While Dodek suggests that Anber could have avoided this by just asking for help from senior lawyers, I’m not convinced.

Here’s what he said on Twitter last year:

Twitter   DavidAnber   aglawoffice the CLA ListServ ...
I don’t know if Anber actually used the Criminal Lawyers Association ListServ,  or whether it is helpful or not. I’m willing to wager, however, that if Anber posted his question to any experienced criminal defence lawyer,  he would have been admonished, if not censured by his fellow CDLs. The more troubling issue is that he even considered asking the question in the first place.

Curtis Sliwa, Founder of the Guardian Angels (image via Wikipedia)

In my view, a lawyer doesn’t need a Guardian Angel perched on a shoulder or patrolling the metaphorical subways of   the lawyer’s conscience.

What a lawyer needs is an Advocatus Dei: cross-examining the preconceptions, biases, and prejudices that cloud one’s professional judgement and impair one’s moral compass. The Rules of Professional Conduct are a necessary,but not sufficient, means to ensure a lawyer’s ethical conduct. The practice of law is not black and white. The ethics of law is dappled with more than fifty shades of grey.

Is it time for lawyers to adopt a form of Hippocratic Oath: “Primum non nocere” (First, do no harm)?

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2 Responses to “Primum non nocere (First, do no harm)”

  1. Jeff Gamso Says:

    “There are no short-cuts or hyperlinks to discharging one’s ethical duties.”

    Indeed. That sentence ought to hang on the wall in every lawyer’s office (and for that matter in every office).

  2. Antonin I. Pribetic Says:

    Thanks, Jeff. The mind boggles.

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