The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases

5. LAWYER-CLIENT RELATIONSHIPS IN COLLABORATIVE LAWYERING

A. Control and Responsibility

The conventional relationship of "lawyer as expert, client as novice" gives the lawyer a significant amount of control over judgments and decision making. In CFL, this relationship is altered by a greater emphasis on the client's interests and needs, and a lessening of the impact of substantive legal rights and principles (see the discussion in the previous section). However, the renegotiation of the boundaries of control and responsibility in CFL is neither conceptually nor practically straightforward.

i. Discussion

While almost all lawyers will say that their clients are the ultimate decision makers, the dance that precedes a final outcome takes many different forms. The relationship between lawyer and client in making decisions about the management of the case reflects that lawyer's procedural (do we negotiate? what do we offer? do we play hardball?) and substantive (what is a good outcome? what is a just outcome?) values, and how far these values are integrated with those of the client or simply imposed. At a general level, this debate is often characterized as a contrast between client autonomy and lawyer paternalism. The autonomy approach emphasizes the personal goals and interests of the individual client and attention to factors—perhaps known only to the client—other than legal appraisal by expert counsel. The premise of the autonomy approach is that the lawyer's primary responsibility as an advocate is to enable his clients—by providing legal advice, but also by asking questions and canvassing options—to assess their own situation in a manner that enables them to determine the best possible course of action for themselves. The paternalistic view places a stronger emphasis on the expert judgment of the lawyer, which, combined with the emotional distance possible for a professional, enables the lawyer to be the better judge of the right outcome for this client, no matter how removed from the lawyer's own circumstances. From this perspective, clients expect counsel to tell them what to do and to advocate for them on the basis of the counsel's expert opinion.

There is an obvious overlap or blurring between these two positions.[57] Even lawyers who are committed to client autonomy would accept that the values of the individual lawyer are not irrelevant to the process of reflection and deliberation—a lawyer will likely wish to be more than simply the client's hired gun. The lawyer may exert significant influence over the client. The lawyer often (and with one-shot litigants such as divorce clients, usually) controls what information will and will not be presented for the client's consideration. In CFL, client autonomy in decision making is further complicated by some significant pre-existing constraints: certain decisions (for example, the decision to litigate or to refuse to disclose relevant information) would risk the ending of the lawyer-client relationship. On the other side of the equation, any amount of lawyer paternalism cannot exclude the influence of extra-legal considerations, such as the client's personal psychological state or economic conditions, which may mean that counsel is unable to persuade the client to take the lawyer's advice. On the other hand, the client may be the more powerful (social or economic) player in the lawyer-client relationship. With neither a pure paternalistic nor autonomy position likely in practice, the essence of this debate becomes the balance of power between counsel and client in determining the direction of the case, including decisions regarding both negotiation strategy and eventual outcomes.

Client autonomy and self-determination is a central mantra of CFL, and CFL lawyers often describe their goals for their clients in terms of empowerment. In particular, CFL lawyers promote the dignity that comes from ending a marriage respectfully and without lasting bitterness and acrimony. But collaborative law also raises challenging questions for CFL lawyers about the balance they should strike between client empowerment, and "knowing what is best" for their client. Striking this balance illustrates the potential collision between autonomy and paternalistic approaches to advocacy.

ii. Data

A frank picture of the extent of client control in the litigation model appeared in interviews with collaborative lawyers. For example,

I think what was happening with us as advocates is that we had a bad tendency— notwithstanding that we would say "It's on instructions from my client" or "It's our client's wishes"—that we would be telling the clients what they should do, usually based on what we understood their rights were, or what…strategy could be to their advantage.
Case 2, lawyer 2, entry interview, units 147-151

This assumption is echoed in data from another interview-based project with commercial litigators. For example,

When I started practicing back in the mid '60s, there was a terrible arrogance in our profession. We thought all clients were not necessarily idiots but didn't know what was best for them, and the client had no idea what was going on in the legal system. Ottawa-5 units 85-87

However, the same lawyer continued,

People are 100 percent more sophisticated now, know what goes on in the system generally and are much more conscious of where their buck is going than they used to be. Ottawa-5, units 86-87

However, that does not mean that collaborative lawyers have given up control—far from it, remarked this collaborative lawyer:

Let me go back to the control thing just for a minute if I may…I think it's very clear, we still have a ton of control…in fact, more control maybe than we had, in a sense, than before. Not of the outcome, necessarily, [but] over process and over behaviour in the meeting and so on. Case 2, lawyer 2, entry interview, units 188-197

This comment was reflected by some clients' observations that the type of input they received from their lawyers in CFL had a different focus than the advice lawyers give in traditional processes. Clients noted that CFL advice was more likely to focus on strategy and process. For example,

In making decisions, I have found that he [the lawyer] will say, "Well, there's this or there's that, if you do this…" I find that he's strategizing and sort of laying it out for me that if I take this route…I'm finding that good. I like strategy more than "I think you should do this." Case 1, client 1, entry interview, units 61-62

In one important way, collaborative lawyers consistently stressed that the power dynamic within the lawyer-client relationship has shifted. Many referred to the fact that they had the tendency in a litigation model to take ownership of the problem on behalf of the client. This approach often caused significant stress (see the discussion earlier in this report). In CFL, clients are expected to take on more responsibility for solving their own problems. For example,

The overall responsibility has shifted to the clients. We tell the clients they are responsible for the problem. We are going to help you to fix it. We will give you the mechanism, the procedure for resolving it. But it's not our problem. Before, I think too many lawyers would make their clients' problems their own. Field visit, lawyer 10

You find that clients dump on you a lot more in litigation files. They want you to solve their problems. In the collaborative files, the clients really get it—that they are there to solve their own problems. Field visit, lawyer 8

This can be a difficult transition for some lawyers habituated to the old approach:

Our biggest challenge is to step way from finding the solutions for the clients. They have to find it for themselves. Case 8, lawyer 2, mid-point interview, unit 23

One lawyer explained the division of roles and responsibilities in a CFL model as follows:

I explain to my clients, they're in the car, they're driving the car. What I have in the CFL van that we're all cruising around in is the road map, and so does the other lawyer. So we're holding the road map, which is the law, we know where the construction is, we know where the potholes are, we know the shortest route between two distances, we know where the speed limit is higher…Even when you see exactly what should happen, my job is not to drive the car, my job is not to be the passenger in the front seat agreeing about where they're going to go next. My job is to keep holding the map. Case 4, lawyer 1, entry interview, units 390-411

Some clients appeared to understand the change in control, and most who did regarded this as a positive characteristic of CFL. For example,

It gave you a sense of control. You were controlling your own destiny. Field visit, client 3

Some CFL clients were significantly empowered by the collaborative process, to the point that they might eventually challenge their lawyer's advice about what was in the best interests of the family, or even the final bill. (Case 6, client 1, exit interview, units 88-90)

Other clients, however, recognized there were aspects of the collaborative process over which they had little control—such as timing, when the other side was apparently dragging their feet. Others remarked on the fact that they were effectively forced to stay "with" the process at all times—a feeling that might not always feel empowering. (Case 11, client 1, mid-point interview, units 341-342) The same client pointed out that participating in a collaborative process meant giving up some control and instead trusting the process, even where the direction seemed unclear. Other clients commented on feeling less in control when they received the final bill. (Case 6, client 1, exit interview, units 87-90) Finally, one client made perhaps the most relevant point about the nature of cooperative negotiations—that, in fact, no one person is or should be in control. (Case 9, client 1, entry interview, unit 44)

B. Advocacy

i. Discussion

Because this study focusses on the experiences of lawyers and clients—such as the way lawyers and their clients understand advocacy within a CFL model—the rules of professional conduct governing representation and advocacy provide only a backdrop to the study's observations and analysis. Others have tackled the question of how the norms of collaborative practice square up with the rules of professional responsibility in the United States,[58] and similar writing should be anticipated in the Canadian context.

This study asked collaborative lawyers to describe the differences they see between their representation of clients in a CFL model and their advocacy role in a traditional litigation model. Within the case study sample, participating lawyers were asked to describe what it meant to be an "advocate" for their client in that case. Similarly, participating clients were asked in interviews to describe their working relationship with their lawyer and, as their case progressed, to describe their understanding of the advocacy role and responsibilities of their lawyer, and how far their lawyer's advocacy met their needs and goals.

Previous work has suggested that operating as agents in a consensus-building process presents both conceptual and practical challenges to lawyers who are more accustomed to operating in an environment in which their role is to maximize gain for their own client within a predominantly zero-sum bargaining culture. In an earlier study of commercial litigators who now participate regularly in mandatory court-connected mediation, the author notes that, "The clarity of the traditional litigator's role—variously described as ‘zealous advocate,’ ‘a son of a bitch,’ ‘a manager of war,’ and a ‘pit bull’—has eroded as litigation costs have risen exponentially and commercial clients have begun to expect different approaches to creative problem-solving."[59] Many of the subjects in that study identified a tension between what was characterized as "the two hats" of a lawyer: one, the traditional adversarial advocate or "pit bull," and the other, the settlement facilitator (memorably described by one respondent as "Little Miss Helpful").[60] While not all litigators experienced tension between these two roles—some saw the switching of hats as a normal part of playing a representative role, while others experienced an acute sense of role dissonance between the two approaches—one would expect to see similar tensions and potential role conflicts within the practice of CFL.

The description of the lawyer's duty to the client as one of "zealous advocacy" has been the subject of intense debate ever since its original articulation in the American Bar Association's Rules of Professional Conduct.[61] In its most traditional, black-letter formulation, zealous advocacy means doing anything and everything that is lawful to advance the clients' independent interests. Described by William Simon as the "dominant view," this understanding of advocacy assumes that "the only ethical duty distinctive to the lawyer's role is loyalty to the client."[62] The interests of the other side, third parties or public interests are extraneous to this loyalty; the client's position must be asserted unambiguously.[63] In fact, any sense of these outside interests may undermine the lawyer's focus. This perspective on advocacy also implies that the time for talking is past—there is no suggestion in the so-called dominant model that the lawyer-advocate should be scrutinizing, questioning or reassessing the client's goals or positions.

In practice, the lawyer's role comprises much more than advocacy. Furthermore, few lawyers would understand their advocacy responsibilities as narrowly as that described in the dominant model. Even the most positional advocacy usually includes taking stock and reappraising settlement options, albeit at a more advanced stage. Within this expanded and more realistic definition of advocacy, a number of further questions arise that are relevant to all philosophies and areas of legal practice, but which take on a special challenge and nuance within the collaborative process. The first is what balance to strike between the counselling role (what the lawyer can offer in terms of "deliberative wisdom")[64] and the advocacy role (how the lawyer can make the case for the client's position). How much time and energy should counsel give to each of these functions? How important is each? The CFL model presents an especially interesting challenge because the physical distinction between these two functions—counselling occurring as a private conversation between lawyer and client, and advocacy taking place as the public manifestation of decisions taken in private—is effectively eliminated. Counselling may still take place in private, but it will probably occur in the four-way meetings as well. Many conventions surrounding the style and delivery of advocacy assume that the audience is limited to the other party's counsel, and only occasionally includes the client. In a CFL four-way, the client is always present to hear and perhaps to directly respond. The structure of the collaborative process means that advocacy can no longer take the form of the unmodulated assertion of positions that is possible when these two functions are separated by time and space.

In CFL, the merger of the lawyer's counselling and advocacy functions takes place not only structurally, but also philosophically. A second question for advocacy generally is how far this responsibility precludes the consideration of any interests other than those of one's own client. In practice, most lawyers take the interests of the other side into consideration in order to enlarge the cooperative space within which negotiations can take place. All lawyers who are fully committed to the use of consensus-building processes—such as mediation, CFL or simply cooperative negotiation—would argue that effective advocacy in these processes must go beyond an exclusive focus on the interests of one's own client. The strategic importance of considering the interests of the other side is also identified by Mather, McEwen and Mainman as a convention in divorce advocacy.[65] The belief that the client's best interests can only be achieved if the interests of the other side are taken into account is a central premise of the principled bargaining approach popularized by Roger Fisher and William Ury,[66] and frequently included in training programs for collaborative lawyers, cooperative negotiators and mediators. CFL lawyers commonly assert that the lawyers' responsibility in bargaining includes, at a minimum, a strategic consideration of the other side's interests. Unless these are taken into account in proposing negotiated solutions, opportunities for creative and constructive outcomes will be squandered.

ii. Data

Most, although not all, of the CFL lawyers identified at least some role tensions that they were often struggling to resolve. As one lawyer expressed it, "I experience a tension between CFL outcomes that satisfy the client and ‘doing better.'" (Field visit, lawyer 30) One lawyer voiced the struggle that more experienced CFL lawyers were able to articulate by saying, "So what if an outcome that my client wants is not one that is really good for the family? I can reflect this judgment back to the client…but I do not know what is best for my client—the client does…[T]he grey issues are difficult here." (Case 7, lawyer 2, entry interview, units 20-21)

Collaborative lawyers take a variety of approaches to balancing their commitment to their own client's interest and regard for the interests of the other side. Sometimes, this is expressed as a reframing of the client's best interests. For example, one lawyer stated, "My client's best interests are not met by beating up on the other side. If it is, they will be back down the road. And they will remember who won the last time." (Site visit, lawyer 16) To an extent, this is a pragmatic recognition that does not take away from the traditional responsibility to one's client. For example,

What is good for the client is that she or he has a divorce that she or he can live with—one that is less destructive and less costly…In acting for the client, you have to take account of the interests of the whole family. Site visit, lawyer 20

However, for some CFL lawyers, this approach blurs the distinction between exploring and perhaps challenging one's own client's interests, and taking on responsibility for the whole family. A few of these lawyers go beyond a general strategic or good faith regard for the interests of the other side in describing themselves as being in the service of the complete family unit and an advocate for their best interests. As one said, "[A]s an advocate, I am looking more at the family as a unit." (Site visit, lawyer 10) Some appear to consider that they serve a differently constituted "client" comprising the "whole family," which may contradict or even supplant their commitment to their own client's goals. Another CFL lawyer describes himself as making "a contract with the client to find a solution which is in the interests of the whole family." (Site visit, lawyer 44)

Motivated by their desire to help find healthy family solutions to the challenges of separation and divorce, these lawyers face a danger. Often, but not always, lawyers with the least practical experience in CFL—but who are greatly enthusiastic following CFL training—may feel collaboration diminishes or dilutes their advocacy responsibilities to their own client.

Sometimes, more experienced CFL lawyers also reject the notion of advocacy, often expressed as a need to distance themselves from the familiar connotations of the term. Occasionally, this approach is explicitly reframed as an assumption of professional responsibility to all the players in the collaborative process. A few lawyers seem comfortable with advocating for the CFL process and for what they see as good "whole family" outcomes—and less so with advocating for their own clients' goals. For example,

I never saw myself as being his [the client's] advocate. I was primarily his and [the lawyer on the other side's] and [the other client's] guide to their own capacity for having their internal behaviours be the right behaviours, vis-à-vis one another. And so, no, I never advocated anything. I advocated people trying to attain their best behaviours in a very unusual and time-compressed situation. Case 12, lawyer 2, mid-point interview, units 172-177

Q: If your client said to you in the four-way, "Explain to me how you're representing my interests here," what would you say?
A: I would say, "I'm really here to represent the interests of both you and your husband, but I'm also here to support you individually in whatever way you need me to, in whatever way you need me to be here for you." Case 6, lawyer 1, entry interview, unit 17

There are also some signs of a more ideological approach to CFL, which needs careful monitoring by those within the CFL movement and complete explanation to clients at the contracting stage. This more explicitly paternalistic approach is idealized in a lawyer-client contract in which the client commits to act as his "highest functioning self" and will be pulled back by his lawyer from selfish or destructive behaviours.[67] Advocacy in this formulation becomes "trying to achieve what the client has identified as their highest functioning goals." (Site visit, lawyer 41)

Notwithstanding the questions that these comments might raise, it would be misleading to assume that all, or even most, collaborative lawyers understand CFL as precluding strong client loyalty. Many CFL lawyers describe their strong primary loyalty as being to their client, with whom they have a distinct and special relationship, no matter how committed they are to facilitating an agreement with the other side. This was nicely put by one very experienced counsel who admitted, "I think, to be honest, it's natural for an attorney…that my best friend in the room is always going to be my client." (Case 11, lawyer 2, entry interview, unit 449) Another equally experienced CFL lawyer said that she still assures her clients, "I shall still get the best deal for you." (Case 2, lawyer 1, entry interview, unit 26) Many of these lawyers understand their advocacy responsibilities as the factor that critically separates their role from that of a mediator. For example,

I absolutely think I have a special responsibility to my client. I mean, I am their attorney. I am her attorney or his attorney and there is no question in my mind that that is my primary duty. I mean, that's what my job is, that's what I'm being retained for and, if that's not the case, there can be a mediation with two mediators who are neutrals. Case 12, lawyer 1, entry interview, units 118-120

The data from this study clearly establish the potential for individual diversity—and for many lawyers, an evolving practice—in relation to advocacy values in CFL. As a result, it is very important that CFL lawyers ensure that they are fully conscious of their own values in undertaking the collaborative process, so that they can be fully self-disclosing with their clients when they first sign on. Whatever model of advocacy individual CFL lawyers offer their clients—and there are probably as many variations within CFL as there are within a traditional divorce practice—clients need greater clarity about what they should expect at the outset.

A mismatch between the values of the lawyer and the expectations of the client (discussed previously in section 3(D) of this report) produced several fairly common manifestations in the case studies in relation to advocacy issues. One occurred when the client found that she was working with a counsel who was extremely reluctant to provide legal advice specific to her case. This approach is specific to particular lawyers in some CFL centres.[68] The client became frustrated that she was not receiving clear legal advice from her counsel that she believed, rightly or wrongly, would break the impasse in negotiations, perhaps by providing a "reality check" to the other side or simply by asserting what she understood to be the legal and moral strength of her own position. It appears that, until faced with this situation, some clients do not fully comprehend that their CFL lawyer will not provide traditional advocacy in the form of legal advice. One client expressed his frustration with the absence of legal advice as a lack of reality, stating, "I don't need touchy feely, I need reality here. I felt like I was fighting three people" (i.e., his spouse, his spouse's lawyer and his own lawyer). (Case 8, client 2, mid-point interview, unit 20) Another manifestation of a mismatch of advocacy values between lawyer and client sometimes arises in the context of disclosure. Some lawyers are committed to bringing each and every piece of information to the table that they believe will help to build trust. However, their clients may have concerns regarding personal privacy or even safety (see also the discussion in section 9(C) of this report). One final example highlighting different expectations and values related to advocacy arises from the concept of the collaborative team. Occasionally, CFL clients express their discomfort with the apparent friendliness of their own lawyer toward counsel for the other side, and sometimes toward the other spouse. The notion of the collaborative team" (which includes both lawyers and both clients, and perhaps other collaborative professionals) implies some readjustment in expectations about the personal relationship between lawyer and client. Some CFL lawyers do a much better job than others in preparing their clients to accept this departure from normal adversarial practice.

C. Reflections on the Autonomy-Advocacy Nexus in CFL

There is a clear relationship between client autonomy and control over decision making, and lawyer conceptions of advocacy. How do these relate in a CFL model? On the face of it, CFL promises greater client autonomy and control than traditional litigation. It claims to iberate clients into the freedom of autonomous decision making by assuming that a particular set of substantive and procedural values is what is best for them.[69] CFL also promises that, unlike mediation clients, CFL clients will benefit from having their own advocate in the process who is nonetheless committed to a collaborative, team approach. Within these promises lie many of the tensions and challenges affecting the renegotiation of the lawyer-client relationship in CFL.

The source of these tensions is the collaborative commitment itself, which assumes that a better outcome for the whole family will be achieved by negotiating toward consensus. In a collaborative process, perfect autonomy in decision making and advocacy aimed at maximizing individual gains will not work, and indeed are not appropriate standards. CFL lawyers must be careful in presenting the collaborative process to clients to ensure that they understand that they cannot expect complete control over outcome when they are seeking a consensual settlement, and that they will likely be required to sacrifice personal gains in exchange for an agreed "whole family" outcome. While CFL lawyers often see the procedural commitments asked of collaborative clients as obviously implying these types of compromise, the data from the case studies suggested that lawyers often need to spell out these compromises clearly.

However, for many collaborative lawyers, a further layer of ideological beliefs lies beneath the procedural commitments of the retainer agreement, and these convictions are even more important to disclose to clients. These beliefs relate to collaborative lawyers' substantive values about "good outcomes" for "healthy family transitions" in separation and divorce. They are strongly reinforced by research on the impact of acrimonious divorce on families, especially families with children.[70] However, as a consequence of these convictions, a lawyer may impose on the client a strategic path to decision making that is more than simply procedural (avoiding litigation) and that includes a set of implied values for the family's best interests. Concerns about enabling healthy family transitions sometimes encourage CFL lawyers to see their responsibility as being to the whole family, however, because counsel is not privately working with each member of the whole family or taking instructions from them collectively, there is a real risk that counsel may substitute his or her own judgment for the family's true best interests. While the precise nature of the lawyer's assumed (and often, unarticulated) values will depend on the individual lawyer and the facts of the particular case, they may include, for example, a preference for shared custody; a desire to minimize support and pension succession in order to avoid a prolonged dispute; or, a tolerance for assuming some degree of risk in order to achieve closure.