Although developing your profile is largely about your on-line presence, if you hope to be invited to join collaborative teams, then your off-line reputation is also crucial. The best way to improve your off-line profile is to be visible in your community, but not by making mistakes that everyone talks about. Working on your profile includes protecting it, as well.
I recently received a call from a local collaborative lawyer who wanted my advice. He informed me that he had been retained post-dissolution as trial counsel in a matter that the couple had originally resolved collaboratively. The divorce had not been easy, and the truce achieved in the collaboration had “blown up in my face,” according to the former husband. So, despite his new lawyer’s advice, he was not willing to return to the team for additional help.
The final judgment was entered a couple of years ago. Now the gal who represented the wife in the collaborative dissolution of her marriage has filed a motion to suspend visitation or to require it to be supervised. So she wants to represent the wife in a post-dissolution dispute she’s having with her former husband . . . in court!
My friend wanted to know if I’d be willing to testify as the expert in his motion to disqualify the Former Wife’s lawyer. Wow! How uncomfortable did that make me feel? When I asked, he assured me that the original collaborative participation agreement didn’t address this issue. But it just seemed wrong to me. Having established a relationship with the former husband during the collaboration, as a member of the team working for this couple, this lawyer knows things about that client that a trusted professional would know, but that a lawyer representing his former wife in court should not. Although aligned with the wife, she was a trusted member of the team working with the couple. Thus, she has a connection with him that she would not otherwise have.
So I told this trial lawyer that I would be his expert. But I wanted to do some research. I suspected that the question must have come up before, but I didn’t know what the prevailing thought was. As someone who has been qualified by several different courts as an expert in legal ethics, I know how it makes me feel, but I was hoping that there might be some official word on it.
Besides, this isn’t a legal ethics issue, is it? It’s a question of collaborative ethics, which is not the same thing. So I wrote to a few of our collaborative pioneers, reiterating the above, and soliciting their thoughts. Here’s what they had to say:
Stu Webb (attorney):
My response is “No.” For all your reasons .
Ron Ousky (attorney):
Hi Joryn, I completely agree with you. When we sit down with a couple in a Collaborative case, one of the things we assure them is that we will never be in an adversarial relationship with them at any time in the future. That creates a trust that helps the process go much more smoothly. Personally, I would never breach that trust.
Whether it is a violation of the Participation Agreement or local ethical rules is a little more difficult. Our Participation Agreement specifically states that we will not represent them in post-decree matters (I would recommend that you include that provision in your future PA’s.) I know of at least one group (Cincinnati, I believe) that has a provision allowing post-decree representation, which I think is a mistake. When a PA is silent in the issue, I would like to think this is implied but I am not sure if we can contractually insist on that outcome.
In any event, you can certainly pass on my opinion that representation in a post decree matters runs afoul of the basic principle (the “one rule”) of Collaborative and, in the end, weakens our product.
Let me know if I can offer any other assistance.
Pauline Tesler (attorney):
Hi, Joryn. This is indeed very troubling and, if that happened in our community, nobody would ever collaborate with your colleague again because it smells so bad.
Here is what paragraph one of our “Stipulation and Order for Collaborative Divorce” says on this subject. We file this pleading with the court as soon as a divorce petition has been filed. This is just one of many provisions that protect the process, and I believe it’s essential to have such a pleading in the court file for just this reason. Many communities just do a contract, not a pleading, and I believe they leave themselves vulnerable to just this kind of problem. When a stip and order is used, there is already a court order barring what your colleague is doing . . . if it is related to the divorce in any way.
It originally barred representation in any subsequent contested matter between the parties, but the consensus was that was too broad and it now is limited to family law matters. I disagree but they did have some good arguments relating to business contract disputes or probate disputes.
Pauline H. Tesler, Attorney at Law, has been retained by Wife to advise and counsel Wife during the course of this proceeding for dissolution of marriage; and John Doe, Attorney at Law, has been retained by Husband to advise and counsel Husband during the course of this proceeding for dissolution of marriage. Neither attorney is or will be attorney of record for his or her client in this proceeding for dissolution of marriage and each attorney agrees to be bound by the terms and provisions of this Stipulation and Order. Each attorney named above, and any attorney “in association” with that attorney, is forever disqualified from appearing as attorney of record for any party to this proceeding for Dissolution of Marriage or in any other contested Family Law matter involving those parties, such as a proceeding or action for Dissolution of Marriage or Parentage, modification or enforcement of Judgments or Orders, writs and/or appeals. This disqualification shall survive the term of this Stipulation and Order and may not be modified or revoked once entered as an order of court. An Attorney shall be deemed “in association” if, at any time during the pendency of this proceeding for Dissolution of Marriage or future family law proceedings between these parties, such attorney is the employer or employee of, or co-employee with, or shares a relationship of independent contractor status with any attorney named above.
Linda Solomon (facilitator):
Well, here is what I try to live by in collaborative matters: “If it feels icky, it probably is icky.” This one feels very “icky” to me since it is about the same couple that she participated with in a collaborative matter.
Joryn, I always believe that you should err on the strict side for any issue. I’m not an attorney, but think that once you are Collaborative in a case, you can’t then litigate – no matter what.
Mark Baer (attorney):
This is just one example of why I don’t believe that many “collaborative” colleagues are actually collaborative, which is a very serious problem.
As far as the information the attorney knows that they wouldn’t otherwise know – one can say the same thing about attorneys who participate in facilitative mediations; however, they are not disqualified from representing their clients in litigation.
Regardless, it seems very wrong to me as well. Furthermore, a true collaborative practitioner would not be acting in such a manner. In fact, they would be encouraging their client to return to the collaborative process. I don’t know the ethics involved and California has not enacted the Collaborative Divorce Act, so the practitioners can be more “unethical” than had it been enacted.
The collaborative stipulations need to provide for as many of these types of situations as possible because so many “collaborative practitioners” aren’t collaborative at all.
One thing I believe in my heart of hearts – if this person is a member of a collaborative practice group, they should be removed.
These are all the responses I received. Not one disagreed that the attorney’s decision to file the motion was questionable, at best. So, after I spoke with the gal in question, I replied to these compassionate collaborative professionals who had so kindly taken the time to respond to me:
“Thank you so much for your supportive counsel. Sometimes it’s hard to do the right thing when you see someone else doing the wrong thing.”
I took my heart in my hands when I called the lawyer who had filed a motion purporting to represent the former wife in court whom she had represented collaboratively in the original divorce. You will be glad to know that she had already re-assessed her actions when she heard I had been brought in as the collaborative expert, but you will not be happy to hear her “position” to me. She immediately assured me that she had no interest in pursuing the matter in court, that she had done all that she could to convince the former husband to return to collaboration, but that, given the urgency of the issue, she saw no alternative but to file her motion. She had been searching for trial counsel for the former wife but had found no one until the day of the by-then continued hearing, and she would have gone to court for that hearing because she was not specifically foreclosed from doing that by her Participation Agreement. She argued that the matter was urgent and that was reason enough to allow her to do that.
While the result was the right one, it was tough to hear this woman argue that she should be allowed to stretch the rules in some situations. (I do believe she was merely trying to rationalize her actions. The matter was not urgent, in my opinion, which is why she agreed to continue it.)
In any event, thank you so much for your support. You did help me make that phone call.
Stu Webb put his finger on it when he responded:
Egos do get in the way. (“How could someone do without me!”)
So I have to ask; what’s your opinion . . . and why? And I don’t mean about the collaborative ethics implicated here. (That seems to be a foregone conclusion at this point.) I’m talking now about the issue of protecting your profile. Taking risks with your profile is perilous. Assuming it really was impossible to find a trial lawyer on short notice, why didn’t this collaborative attorney simply advise her client how to draft and file a motion to get the litigation process going?
Would that solution have satisfied the ethics in question here? At the very least it would have protected her profile. Because word will spread, won’t it? Whether we like to admit it or not, there are at least two collaborative lawyers in town now who will not want to team with this attorney. And who may be compelled to explain “Why” to the facilitators or financial neutrals who pursue the question.