COLLABORATIVE LAW: Considerations, Pro and Con, and How to Choose a Collaborative Lawyer (two articles)
FLORIDA FAMILY LAW APPEALS -- All Florida Courts:
Palm Beach Divorce Lawyer Lisa Marie Macci and
Broward County Family Lawyer Elizabeth J. Kates
This webpage is http://www.thelizlibrary.org/collaborative-law/collaborative-law-considerations.html
Pros and Cons of Using Collaborative Law:
[Excerpt of liz's article at collaborative divorce website.] Before committing to use the collaborative process, and before holding
the initial four-way meeting, a lawyer and his or her client must carefully
-- and privately -- consider whether the case is appropriate for an attempted
collaborative dispute resolution. The lawyer must objectively, fully, and
fairly inform the client of not only the potential advantages of collaborative
law, but also the potential disadvantages and risks. The process is designed
such that it indeed is a commitment: if it does not work, both of
the collaborative lawyers must withdraw, and may not represent their clients
in litigation. This may or may not entail risks, depending on the facts
of the case. Therefore, the client also must inform the lawyer of aspects
of the client's situation and case that bear on this decision.
The collaborative process should not be singled out for scrutiny. It
is an alternative to litigation, so the advantages and disadvantages of
litigation similarly should be objectively and fairly weighed. Either process
can involve the addition of mediation or arbitration to manage some of
the issues, and litigation typically also includes some traditional settlement
negotiations (whether under a cooperative law umbrella or not). Most litigated
cases do settle, albeit after some amount of time, expense, pain and the
risk of irreparably impaired relationships. Conversely, even collaboratively-resolved
family law cases (just as for family law cases resolved by mediation or
settlement alone) can find their way back into court years later for future
disputes involving child support and child custody, inasmuch as these kinds
of matters remain open for adjudication during the minority of the child,
and there is no guarantee that new disputes will be resolved collaboratively...
[The rest of the article is at the collaborative law website HERE.]
Selecting a Collaborative Lawyer -- ethical issues and some cautionary notes:
It's admittedly difficult to know in advance whether a traditional lawyer,
let alone a collaborative lawyer, is going to be the right choice for you.
There are many articles geared to
selecting a lawyer and nevertheless,
many mistakes still continually are made by clients, but there is even less information
about choosing a collaborative lawyer, how to choose a collaborative lawyer, other than promotional
The following discussion isn't comprehensive about what positives to look for
(there are many other articles that do that regarding hiring lawyers in general,
and it's a broader subject beyond the scope of this article) but rather --
and particularly because there still are so relatively few collaboratively trained
lawyers -- this article is limited to cautions unique to the selection of a collaborative lawyer
that you likely won't find elsewhere.
It isn't necessarily a complete list, but it's a few bell ringers
that would give me cause to pause if I were considering hiring a
collaborative lawyer myself.
(1) I would want to stay away from lawyers who prefer collaborative law primarily for what it does for them. I would be cautious about hiring a collaborative lawyer who refuses to litigate under any circumstances, in any case, with any client. Along the same lines, I would be cautious about hiring a collaborative lawyer who has made too many statements
about having chosen collaborative practice because it is beneficial
for his own well-being and psychic satisfaction. I would not hire a collaborative lawyer who appears to take personally any questioning or implied criticism of the collaborative process. I would be cautious about hiring a collaborative lawyer who appears to confuse good faith bargaining with the absence of anger and align it with polite chitter, or who seems afraid or unwilling to deal with emotions, or who insists that any strong emotion calls for psychological intervention or "coaching". I would not hire a collaborative lawyer who makes broad negative statements against "rights-based"
negotiating -- which in other milieus does have its place -- or misrepresents the benefits and detriments of litigation, or disses all litigators as "gladiators". (But for legal gladiators, none of us would have any of our constitutional
I would not want to hire an ideologue who egoistically thinks that his own interests matter when it comes to what's a good legal process for clients, or someone who was burnt out on the practice
of law and looking for an easy and lucrative semi-retirement (or, conversely, a very young family lawyer without experience doing things the traditional way, or who might be easily manipulated by a more experienced negotiator on the other side). I also would not want to hire someone who was a starry-eyed fanatic so religiously
devoted to "the process" that he puts it (and possibly his like-minded
colleagues) above my interests as a client,
and/or just can't be objective. Bottom line: enthusiasm is good, fanaticism isn't.
(2) I would be cautious about hiring a collaborative lawyer who says
that a comprehensive, written lawyer-client representation agreement will
not be necessary because "the participation agreement" will cover
things. First, the participation agreement may not cover everything. Second,
this is an indication that there has not been adequate private attorney-client
discussion about the pros and cons of which process to choose, a discussion
that may not be completely appropriate "in public" in the presence
of the opposing party and his attorney at the first four-way meeting. There is a risk of a hurried or pressured decision-making because three other persons want to get on with it. Third,
this arguably runs afoul of a controversy over ethics in which it remains
unclear whether and to whom a lawyer who signs a participation agreement
is in contractual privity. Fourth, this indicates sloppy practice and/or a lawyer who is not intellectually conscientious about keeping up on the issues involving collaborative law or drafting documents.
Remember that, when all is said and done, everything you are paying for will be represented in the written contracts that come out of the collaborative process. You may feel that a therapeutic end result is important, but you don't need a legal process for that.
This is still "law". There are potentially irrevocable legal decisions being made. At the end of a legal process, you usually want the most tightly drafted, workable and easily enforceable documents possible, with the highest chance of keeping you from having to return to the negotiating table -- or to court -- to interpret ambiguities or adjudicate overlooked issues.
(3) I would be cautious about hiring a collaborative lawyer who seemed to hold
assumptions in advance without adequate facts about what might be good for me, my
situation, my children, or my "family". ("Family" is a euphemism which means
"the interests of the other party", i.e. soon-to-be ex-spouse). These assumptions might include
telling me what additional professionals I should hire, such as mental health
coaches, financial planners, psychologists, mediators, and so forth, all before the lawyer has adequate facts to make the determination. Other assumptions might be hinted at in conversational or contract language that indicates a value system at odds with my own, or pre-existing mindset about certain kinds of issues such as selling the marital home, or post-divorce relocation,
or "parental alienation", or what "children" (my children?)
"need" as far as custody or "timeshare", or how or
when or why I may have discussions outside of "the process"
with my spouse or my children or my mother. Situations differ, and assumptions are
not indicative of an objective, open or creative mind. One of the advantages of collaborative law is supposed to be that win-win solutions can be tailored to specific circumstances, and privately agreed to, without regard for the defaults in the law, or anyone's ostensible rights under the law, or what third parties, whether legislatures, judges, lawyers, relatives or others necessarily presume.
(4) I would be cautious about hiring a collaborative lawyer who did
not discuss with me at length, and in private, and give me ample time on
my own to read and think about, the proposed participation agreement --
long before I were sitting at a four-way meeting with the opposing party
and his counsel and being asked to sign it. I would be cautious about anything that felt like a sell job, or pressure. Similarly, I would likely not
hire any collaborative lawyer who indicated that other than withdrawal
of the attorneys in the event the process failed, the participation agreement document -- or any other contract -- were substantially
"non-negotiable". I would be cautious about hiring any lawyer who indicated that he would not work with any collaborative lawyer chosen by my spouse, but pushed hard for someone who was a member of his collaborative law group. There are some good reasons for this -- lawyers who already know each other may be able to work better with each other, and may already have agreed on various process issues, which can save time. But there are disadvantages too, such as a possible diminishment of independence. Information is not pressure. Most importantly, I would not agree to sign any participation
agreement in which if my lawyer withdrew or were fired, I would be required
to hire another lawyer from the same collaborative law group. This is arguably
a violation of anti-restraint of trade provisions of some states' laws,
and also possibly an ethical violation, restricting my future choice of
I also would want clarification on a number of matters, preferably in writing, such as what happens if I were to refuse during the process to hire a third party professional affiliated with the lawyer's interdisciplinary group (see next item, below) and wanted my own non-collaboratively-trained accountant or "coach", or if I did not want any third-party professional at all, as well as what would happen if I wanted to discharge a "mutually hired"
third party professional for any kind of reason, and the opposing party or my lawyer did not. Most
participation agreements seem to ignore these kinds of issues and are unclear. (If it takes two to hire, then when two no longer want to continue, is that enough -- or does it take mutual consent to fire? Does keeping on a "mutually hired professional" one no longer wants become a condition of continuing the process of one's own legal case? We wouldn't think of having such a rule if it were lawyers.) If unnecessary issues arise because of unclear agreements about the process, that only adds conflict, time, expense, and complication to the substantive issues of the case.
(5) I would be cautious about hiring a collaborative lawyer who belonged
to an "interdisciplinary practice group" in which non-lawyer
mental health and financial professionals were advertised as equal "collaborative practitioners" or "practitioners
of collaborative law".
I would not hire a collaborative lawyer who too strongly advocated up front that I agree
to an "interdisciplinary team" process. While such a process might have benefits
in certain cases, in others it could be time-wasting, money-wasting, privacy-intrusive
overkill (see #3, above). But the interdisciplinary practice as
"the way we do things around here" also raises ethical concerns.
First, it may signal an ideologue, or an underconfident or
inept lawyer who wants to limit his responsibility to the client.
it suggests the existence of a potential feeder and problematic cross-referral relationships between the lawyer and others
that may be unethical and/or create conflicts of interest. (See my article
The problem is particularly bad when advertising
solicits members of the public to "contact any professional" -- including
nonlawyers -- to obtain legal information. Here's an example: http://www.collaborativedivorceteamct.com/)
Third, it arguably constitutes facilitating the unlicensed practice of
law. Collaborative law is, after all, law. It is the practice of law when the outcome of a process is to produce legal
agreements -- contracts -- enforceable by a court of law and the state's police power, and which in
fact will affect an individual's legal rights for years to come (notwithstanding the
interests-based win-win versus rights-based positional bargaining structure
to get there). It's "law" and that includes custody and
visitation issues, i.e. parenting plan provisions. Negotiating for an outcome
that will affect legal rights and subject an individual to potential contempt and the police power of the
state if agreed provisions are allegedly violated is the province of lawyers, and lawyers only, and not mental
health professionals. (My opinion is the same when this is
done in mediation by mental health
professionals.) So I would be very cautious about "team" approaches
that purported to delegate these things to non-lawyers.
Partial delegation, with lawyer oversight, would ameliorate my position
somewhat if we could presume that any given mental health professional with collaborative practice training had special expertise in communications or in what is in children's best interests, but we cannot make this presumption. See Child Custody Evaluations
and Custody Evaluator Quotes
Fourth, I would be very concerned if the "interdisciplinary practice group"
advertised that people with legal issues could "commence the process"
with a mental health or financial professional, who would then assist the individual
to "assemble a team".
Again, it sounds like an inappropriate feeder or cross-referral arrangement,
as well as a clear violation of unlicensed practice of law.
This is not an appropriate way to choose legal representation.
Commence a legal process -- with a nonlawyer? -- and without
full and informed consent after first conferring with an independent
lawyer as to the propriety of the process for the particular legal case?
UPL might be likened to drunk driving: x people could tell you it was perfectly
fine, got them home okay, and was faster and cheaper than calling a cab, but then x+1 is killed.
Even more importantly, however, if a prospective collaborative lawyer insists that certain kinds of professional services must be engaged in order to obtain his services, or worse, if those persons explicitly or implicitly have to come from the lawyer's own interdisciplinary collaborative law group, that's an arguable state anti-trust violation, a tie-in.
(6) I would not hire any
lawyer who insisted on having the right to enforce the terms of the participation
agreement against me, to disclose alleged violations by me to the other side, or -- especially -- to terminate the collaborative proceedings contrary
to my wishes if the lawyer thought I were in breach -- no matter what convincing-sounding rationales the lawyer posed in support of any of this.
There are multiple problems with provisions like these and they make me suspicious of lawyers who would advocate for them. It places the lawyer into a
position in which the lawyer has rights in and to the client's legal case. (Under
Florida law, it's an ethical conflict for a lawyer to have adverse interests to that of the client and in favor of others.) Consider what this means. Consider by analogy if a litigator insisted on the right to be able to have a client's case in court summarily dismissed against a client's wishes. Or if a transaction lawyer had the unilateral right to terminate a deal-making negotiation contrary to the wishes of his client.
If a lawyer has the right to privately threaten his client with terminating the process, this puts the client into the position
of being able to be extorted by his or her own lawyer under circumstances in which there effectively is no remedy and no oversight. (Remember that collaborative law takes place in a deeply private "container". There is no judge, and there are no witnesses, except, perhaps, opposing party and the opposing lawyer, who has a vested interest in his collegial relationship with the other lawyer.) Such a threat could occur because the lawyer was exasperated or malfeased, or because the client sought to fire the lawyer, or file a bar complaint, or just didn't pay a fee, or if the lawyer and client merely had a disagreement over whether the client was "collaborating
in good faith" -- a rather fuzzy idea. It could happen merely because the client refused to compromise on
an issue. It could happen any time, at whim. It's extremely dangerous. It's coercion.
Trust the lawyer? There's "trust" and then there's stupidity. It's one thing for the lawyer
to have the right to withdraw and to refuse to litigate. It's quite another if the lawyer
owns the right to terminate the client's legal proceedings -- which may have been continuing
for months or years -- and then prevent the client from hiring a replacement collaborative
lawyer, thereby potentially forcing the client into an unknown amount of future legal or
proceeding termination right is apparently a "standard" Texas collaborative law thing,
but it may show up elsewhere. I wouldn't give anyone this kind of power over me.
The argument that the sanction would rarely be used is a non-starter. We cannot monitor
how often it has been privately threatened to be used. You don't give anyone
this kind of power to harm you, and no one, including a lawyer, is entitled to this kind of "trust". The lawyer's remedies
if the lawyer disagrees should be restricted in all cases to withdrawing from the
process and to thereafter turning mute.
(7) I would be cautious about hiring any lawyer who told me that my private consult time with him would be significantly limited. It appears to be fairly common collaborative practice for consult time to be somewhat limited to four-way semi-public meetings. I would want to clarify exactly how much private consult time
I would be able to have with my own lawyer, and how and under what conditions
and as to what matters I could signal and assure attorney-client confidentiality. And I would want these private meetings to be presumed to be confidential, except for a recap and consensus at the end of each regarding what matters would be disclosed.
Generally in collaborative practice, most facts, statements, and documents considered "relevant
to the issues" may -- in fact are required to -- be freely disclosed to the other party and professional
participants, and misleading by omission is verboten.
Prior explicit consent of the client is deemed given in the participation agreement. But this blanket consent can be unclear. Given that I've encountered too many lawyers who have diarrhea
of the mouth (contrary to the ethical canons) even when they don't have permission
to disclose privileged material, such as when they are lawyers of record in litigation, this is
something I'd want very clearly delineated. If the lawyer believed that something I wanted kept confidential properly should be disclosed, that's easily managed: the client is entitled to the opportunity to hear the lawyer's reasoning and make a rebuttal. If they still disagree, the client is entitled to weigh whether he prefers to relent on the issue or terminate the collaborative process. Notwithstanding that I'm quite sure it would feel sweet to some lawyers to be able to discard the burden of attorney-client privilege altogether, the inconvenience to the lawyer is negligible versus the reality that there is no ability to "undisclose" clients' sometimes careless confidences, admissions, and private or just embarrassing matters that were unnecessarily and harmfully disclosed without warning. This includes, by the way, what the client conveys via his demeanor.
With regard to the private consult
time, many collaborative lawyers prefer that all, or nearly all, lawyer-client
communications take place in the four-way meeting. This facilitates the
lawyers' getting paid from the joint pot without one of the parties being
able to complain about the other's additional legal fees, or not spending an "equal" amount of lawyer time. It also
facilitates a sense of open, transparent, and honest communications, furthering
trust. And that's important. Be this as it may, the lawyers still bill for preparation time, and for meetings with
each other, and for meetings with third party professionals which exclude the clients, and third party professionals meet separately with clients, not always equally, so the billing issue is specious. And
clients need lawyers, so perhaps a delineated expectable amount of time for both parties to consult privately with their respective lawyers is something that should be explicitly agreed to and provided for in advance if payment is the issue.
(I think that perhaps it's the lawyers' and mutually-hired third-party professionals' substantive communications with each other, versus those that are strictly procedural and administrative, which should be restricted to meetings at which both clients are present. This too would advance the sense of transparency and trust, and also has the added benefit of helping to contain fees from too many meetings that occur outside of either client's prior knowledge or control. Consider it.)
8. I would be cautious about hiring any lawyer who asked me to sign any agreement that restricted my right to consult privately with another lawyer at any time for any reason. Similarly I would not agree to any provision that "merely"
required my disclosure that I consulted with another lawyer of any stripe outside of the process.
There is a fear that some bad-faith collaborative clients might use the collaborative process to gain time or discovery advantage, having no intention of coming to an agreement, and have a consulting litigator
waiting in the wings. But as a practical matter, it's impossible to distinguish
a second opinion lawyer from a waiting-in-the-wings litigator, and the prohibition
is a violation of a client's right to counsel, and of fundamental privacy, and again, an inappropriate and possibly unethical
restraint of trade. The potential problem indeed may be valid, but the proposed fix is of dubious propriety and essentially worse.
Articles at Collaborative Lawyers, Inc.
What's Wrong With Multidisciplinary Collaborative Practice?
Feeders: Why "Therapeutic Jurisprudence" Must Be Eliminated From Our Family Courts
Collaborative Law, Ethical and Practical Issues
Mediation: An Oasis?
Or Litigation Minefield, by Vicki J. Green, Esq. (also re collaborative law)
Thinking About the Alternatives, by Hilary A. Linton
the Kool-Aid, by Nancy Zalusky Berg, Esq.
Collaborative Law: A Skeptic's View, by Susan B. Apel, Esq.
My Collaborative Divorce -- website details how one collaborative divorce process actually worked
for Collaborative Law, by Prof. John Lande