What is a Collaborative Law Attorney?
One way to answer this question is to look to rules of ethics for collaborative law professionals, which define many of the ways in which the work of a collaborative law attorney is different than an attorney in divorce litigation.
Your collaborative law attorney will discuss with you the process and their role in the process, and much of this is included in the Representation Agreement you’ll sign with the attorney. This role of the attorney, as I’ll describe next and as defined by ethics rules, is what you are hiring the collaborative law attorney to do; and is very much part of what will define what happens in your collaborative law matter.
These are some of the key rules of conduct/rules of ethics for collaborative law attorneys:
- Your collaborative law attorney is required, as is any attorney, to represent your interests, but as part of a collaborative law matter, all the parties and professionals will sign something called a Participation Agreement, in which both parties “agree to use good faith efforts to reach a mutually acceptable resolution;” and this will be included in your Representation Agreement with your attorney as well. So, your attorney and the attorney for the other parent or spouse will be seeking a mutually acceptable settlement and operating in good faith, versus, as in litigation, conceivably seeking to defeat the other side and obtain a wholly unfair result, solely for one person’s benefit.
- The ethics rules specifically provide that “The professionals must act in good faith in all negotiations and in the Collaborative Process, and must advise the clients that the Collaborative Process requires good faith negotiation.”
- That this good faith requires taking “a thoughtful and constructive approach” on all issues; and that no client or professional “takes advantage of inconsistencies, misunderstandings, miscalculations, omissions, or inaccurate assertions of fact, law or expert opinion.”
- That the professional will look at his or her own conduct and how that impacts the functioning of the team.
- Both you and your spouse or the other parent will sign the Participation Agreement which requires both of you to voluntarily disclose all material information. The ethics rules require the attorney to resign from the case if his or her client intentionally misrepresents or does not disclose material information, whether or not the other parent or spouse has requested the information.
So these ethics rules, and what you hire you attorney to do, are very different than what happens in adversarial litigation. And significantly, the same standards of conduct apply to the other person’s attorney. It is a significant time in a collaborative law case, when a parent or spouse sees that the other attorney is not looking to damage them, but rather to seek a fair result for everyone.
I’ve defined what a Collaborative Attorney is by reference to these rules of ethics, but my senses is that my and other collaborative professionals’ behavior in a collaborative case is not something driven solely by adherence to rules, but rather because we believe this is a better way to resolve family law disputes; and are looking to help our client and the other spouse or parent resolve the issues in a positive way.
This is a very different feel than adversarial litigation, which is marked by conflict, threats to the other side, and the threat of an unwanted result for yourself; versus people on a collaborative team trying to work out a result that works for everyone. In litigation, you face concerns regarding how the technical, legal or procedural issues are going to decide the result; uncertainty as to what a judge will decide, preparing for trial and testimony, and all of the additional costs that go in to this; versus in Collaborative Law trying to agree. There can still be conflict and disagreement, but it is a very different process.
It is important also, that almost always your collaborative attorney will know the other attorney and other professionals quite well and have positive relationships with them – there is a collaborative law practice group in each county to which most of us belong, and there is a great deal of interaction among all of us.
In litigation, a client might be concerned if their attorney and the other attorney are friends. In collaborative law, each attorney will represent their client’s interest, but it is positive factor and something that can contribute to resolution of the case that the professionals have strong, working relationships and often friendships with each other.
I believe it is important that your collaborative law attorney have received training in this approach to family law, to help be sure they have made the transition from the litigation, fighting mode, to trying to seek a result acceptable for both of you--versus “winning” in an adversarial process. In more practical terms, it can take a while for an attorney to make the change from seeing their role as contesting matters with the opposing attorney and prevailing, to working with the other attorney on the team.
The Merriam-Webster dictionary defines “collaborate” as “to work jointly with others or together….” This is what happens in a collaborative law case. The attorneys will each represent their own client and will express their own opinions, but the team members, including the two attorneys, truly do work together to help each other and both clients arrive at a successful and positive resolution of the case.
Another definition of collaborate, as in “collaborating with the enemy” is also relevant. Merriam-Webster defines that as “to cooperate with or willingly assist the enemy of one’s county……”. In collaborative law the attorneys, MHP and financial neutral do cooperate with and willingly assist each other and both clients, but the other attorney and client are not identified as enemies.