This article is the second part of an article exploring the Arizona attorney’s role in the collaborative process and various ethical problems that arise. The first part of this article Collaborative Divorce Process AZ.
3. Ethical Question: Doesn’t an attorney have to zealously represent his/her client?
The Arizona Supreme Court removed the obligation to zealously represent client in 2003. Attorneys now just have a duty to act honorably. Pursuant to Ethical Rule 1.3: “A lawyer shall act with reasonable diligence and promptness in representing a client.” The Comment to this rule defines this principal:
Comment:  A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See ER 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (Emphasis added).
4. Ethical Question: Does The Withdrawal Provision Coerce Clients Into Settling?
The withdrawal provision is seen as a way to keep all parties focused on settlement. It also allows the attorneys to keep their “settlement hat” on, rather than moving back and forth between preparing for litigation and trying to settle.
Some argue that the withdrawal provision is coercive; some people can’t afford to leave the process. One may point out that this situation is no different than a client who has exhausted his/her retainer. Sometimes litigants have to choose between paying another big retainer for trial or settling.
5. Ethical Question: Does Relying on Voluntary Disclosure Require Too Much Risk?
It is true that a party can be dishonest through voluntary disclosure, but there is arguably just has much risk of dishonesty in litigation. A litigant can lie under oath or fail to produce relevant information. One may argue that deception is easier to detect in a collaborative case where there are: more face to face interactions where questions can be asked, financial experts who can determine if information is missing, and the use of coaches. The participation agreement also provides remedies – ending the process – if someone does not act in good faith. Parties can still insist on sworn documents in collaborative cases.
Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or firstname.lastname@example.org. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
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Scottsdale, AZ 85260