In the collaborative process, a separate collaborative lawyer is retained by each party. This lawyer must be licensed to practice law. The attorney has a unique challenge in the collaborative process. Attorneys generally have the litigation process and posturing engrained in their way of being. In the collaborative process, attorneys have to learn to advocate collaboratively. They have to represent their clients in a way that is consistent with the collaborative process and goals.
A collaborative attorney’s goal is to help his/her client negotiate a mutually acceptable agreement outside of court. The attorneys still provide legal guidance and education to their clients and help the clients identify the parties’ respective needs. The attorneys help their clients manage conflict, propose reasonable solutions and explore settlement options. The attorneys also prepare the necessary paperwork. They cooperate with each other and other team members. Transparency is key. It is incumbent on the lawyers to explain their limited scope involvement, the client’s choice in entering the participation agreement and avoiding court and the client’s duty to voluntarily disclose information.
Some wonder if the collaborative attorney can ethically take on a case where there is more disclosure and a limited scope of representation. The following ethical rules and considerations support the collaborative process:
1. Ethical Question: Can An Attorney Limit The Scope Of Representation To That Required In Collaborative Law?
Ethical Rule 1.2(c) states: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Informed consent is defined as: “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See ER 1.0(e).
It is important that the attorney appropriately communicate the limits of representations and the benefits and detriments of the collaborative process. Ethical Rule 1.4 states:
“(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
2. Ethical Question: Can An Attorney Be Transparent (Share Information With Other Professionals) As Required By The Collaborative Process?
Ethical Rule 1.6(a) states: “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized . . . .” Therefore, disclosures are appropriate where the attorney obtains consent from the client. Clients consent to this method of communication at the beginning of the process.
Part 2 of Collaborative Divorce Process Arizona
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 alona@sglawaz.com. 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
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260
