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

9. ETHICAL ISSUES IN COLLABORATIVE LAWYERING PRACTICE

A. General

The changed client consultation, negotiation and advocacy procedures required by CFL place lawyers in many new and unfamiliar situations where they must exercise their personal discretion over appropriate ethical behaviour, often without a set of clear precedents or personal experiences on which to draw. The sense in which ethical is used here is both broader and less technical than its meaning in the context of formal rules of conduct. For the purposes of this study, ethical dilemmas are defined as any decisions over competing courses of action—whether in client consultation, negotiation or advocacy—that raise questions of personal moral judgment over the appropriate professional response. The study is interested in, first, the extent to which such dilemmas are anticipated by CFL lawyers and, second, how CFL lawyers are exercising their discretion in these situations. In short, what types of strategic and practical choices are CFL lawyers making in practice to resolve ethical dilemmas?

At the outset, the study anticipated a range of potential ethical dilemmas that might confront CFL lawyers. A laundry list of possible ethical hot spots was developed in consultation with a small group of experienced CFL lawyers. This original list included the following: whether CFL should be promoted to all divorce clients and, in particular, whether CFL should be proposed to clients who are emotionally or physically vulnerable to the other spouse; how, in practice, to discharge the obligation to disclose all relevant information and how to deal with questions of lawyer-client privilege; how to ensure a voice for any children or other significant third parties in the CFL process; under what circumstances CFL lawyers would consider it necessary to withdraw from a case; and, when CFL lawyers should encourage their clients to continue to negotiate rather than start litigation (and how much pressure is appropriate to place on the clients in this circumstance).

Outside a small group of experienced practitioners, the study has found little explicit acknowledgement and recognition of ethical issues among CFL lawyers. Among lawyers who have taken a short (usually two-day) CFL training program and whose case experience is very limited, sensitivity to potential ethical dilemmas appears to be low. When CFL lawyers were invited in interviews to suggest actual or potential ethical dilemmas they might encounter in CFL, given the definition of ethical above (anything that might raise a difficult choice or decision over the right thing to do under the circumstances), few examples were forthcoming. A review of the laundry list sometimes served to stimulate further discussion in interviews. However, the response of many CFL lawyers to the question of ethical dilemmas was somewhat perfunctory. Many acknowledged that they have had only limited practical experience and had not, to this point, encountered such problems. Another fairly common response was to provide a somewhat mechanistic answer derived from training materials rather than from real experience.[75] Perhaps more significant is the number of CFL lawyers who responded to this line of inquiry by stating that they did not anticipate any potential ethical dilemmas.

The picture that emerged from client interviews, however, was more complex. More experienced collaborative attorneys and CFL groups are becoming increasingly conscious of the range of unfamiliar ethical dilemmas raised by CFL practice. There is an unfortunate tendency for innovative informal dispute resolution processes to respond to the potential for bad press by either minimizing or simplifying the new and complex practice choices faced by practitioners; it would be prescient of the CFL movement to avoid repeating these mistakes.[76] At present, CFL lawyers manage the day-to-day and meeting-by-meeting dynamics of their cases within a context of almost unconstrained professional discretion. This freedom is an inevitable consequence of an informal, private process driven by the parties rather than by a set of external rules. In exercising their professional discretion in these and other areas of potentially ethical decision making, CFL lawyers need to be sensitive to the scrutiny that their new process will receive, and ready to anticipate and address issues that arise. The responsiveness of the CFL movement to charting this hitherto unknown territory will be important in establishing its legitimacy and credibility.

B. Informed Consent

Data from this study, as well as from discussions with experienced CFL counsel, indicate that a central ethical issue for the practice of CFL is the quality and depth of informed consent to the procedural, and perhaps the substantive, values of CFL. Many of the issues in the original laundry list relate to this question—for example, the initial explanation provided about disclosure requirements, the extent of private lawyer-client consultation and the acceptance of the full implications of the disqualification agreement. In theory, informed consent is sought and given in all new cases. All CFL lawyers undoubtedly inform their clients of the impact of choosing a collaborative lawyer, walking them through a participation agreement that sets out (among other terms) a disqualification clause in the event they decide to litigate, a commitment to full and voluntary disclosure, a commitment to a collaborative team approach and so on. One problem is that these terms are fairly abstract definitions that may not be meaningful to clients. Another problem is that inexperienced CFL lawyers often cannot and do not fully anticipate the issues that may arise in the process, or the broader implications of participating in an extra-legal, voluntary negotiation process. This results in complaints from clients that the process is not proceeding as they had expected. Such complaints cover a broad range of process issues, including disclosure requirements (such as access to private discussions with one's lawyer and lawyer-client privilege); the pace at which the negotiations are proceeding; compliance (that is, the limits on overseeing interim agreements or undertakings given in the four-ways); and the calculation of fees.

Many CFL lawyers make the point that they spend far more time explaining process considerations to their clients than to the other counsel in a traditional divorce file. While this seems almost certainly true, the question for the collaborative movement—in common with any other alternative dispute resolution innovation—is not so much whether lawyers are doing a better job than lawyers using traditional processes, but whether they are meeting their own standards for integrity of service. A number of the case studies suggest that there is reason to be concerned that some clients do not fully comprehend all the ramifications of the CFL commitment. The challenge here is to determine how well CFL lawyers create a real understanding for naive (especially first-time) clients of what the formal language of the participation agreement might mean for them in practice. Are they prepared to disclose a previous or new relationship if their lawyer believes it is imperative to do so? To discuss topics with their partner that the couple has avoided for years and years? To wait for weeks for the other side to ponder a proposal? To accept the input of an independent evaluator or facilitator recommended by counsel? To terminate their relationship with this counsel and accept the practical and emotional cost of briefing another lawyer if either they or the other side decides to commence litigation? The task of determining clients' appreciation of these possibilities is made even more difficult by the fact that most CFL lawyers have only managed a handful of CFL cases to this point and, as interviews have shown, may not fully anticipate these issues themselves. The exercise of individual discretion, as well as regional variations in the way in which basic CFL principles are interpreted and applied, further complicates the task. For example, how far will CFL lawyers regard their own discussions with their clients to be private, and how much of the contents of these discussions will be made available to the collaborative team? How much detailed legal advice should clients expect to get from their lawyer, or will lawyers only provide a general overview? The clarification of individual practice at the contracting stage seems of more immediate significance than the development of standardized approaches to these and other questions.

C. Case Screening, Including Safety Issues

Another issue that relates to informed client consent concerns the suitability of CFL for particular cases. Many CFL lawyers promote the collaborative process to all their potential family clients. Further, some CFL lawyers tell potential clients that they can only be retained on a collaborative basis. While counsel is probably entitled to limit his or her practice in this way, and while the sincerity of counsel's motivation is unquestionable, this approach leaves some clients (for example, someone who is a long-term client of this lawyer or a new client who has determined that they really want to be represented by this lawyer) with little real alternative to CFL.[77] Some of the more experienced CFL lawyers adopt a more sophisticated approach, developing screening criteria that focus on client qualities such as reasonableness and openness, and will actually turn away clients whom they consider unsuited to collaboration. Other CFL lawyers, however, are so keen to get their first experience of CFL that they make no such evaluation.

A few CFL lawyers express concerns about vulnerable clients who may not do well in the process because of fear or intimidation. There is as yet no systematic screening for domestic violence, although some within the CFL movement are raising concerns about this issue. In some more established groups, discussion is beginning over appropriate protocols for such cases. When asked, most CFL lawyers agree that they would not take a CFL case in which there was a history of domestic violence, but they do little other than rely on their instincts and some basic questioning to screen out such cases. In one case the study followed, there was a history of verbal abuse and intimidation; nonetheless, the client in that case was able to articulate her needs in the collaborative process and to address some of those needs in the outcome.

This case demonstrates the complexity of screening for domestic violence—it is not simply a question of "if there is domestic violence, then do not use CFL." A number of factors need to be taken into account. A recent inventory of screening questions emphasizes the importance of normalizing domestic violence as a prevalent phenomenon and asking both initial and more probing questions to ascertain to what extent a client may feel intimidated and unable to freely negotiate in a face-to-face meeting.[78] It is critical for the development of the collaborative process that sophisticated and detailed screening criteria for domestic violence be developed, and that collaborative lawyers be trained to apply these criteria at the intake stage. There are many models used in family mediation that could be modified, if necessary, to apply to collaborative law. The next stage may be to consider what, if any, process modifications may be possible to enable parties who have suffered abuse or violence and who nonetheless wish to use the collaborative process to do so safely (for example, replacing four-ways with caucus work and planning for personal safety safeguards between meetings).

Several other threshold criteria appear to be important to evaluating the likely successful outcome of a collaborative case. One is a basic level of trust. This need not mean that the parties trust one another on every issue at this point in their relationship—indeed, that is very unlikely. A certain level of wariness and anxiety about openness is natural in any conflict negotiation and should not be seen as a reason to avoid collaboration. As one client put it,

Collaboration here is really an oxymoron. You are collaborating with someone you don't get along with and want a divorce from. Case 11, client 1, mid-point interview, unit 356

But a long history of mistrust and deceits, especially where only one partner has exercised primary control over financial assets and where mistrust also extends to financial issues, is likely to stymie the process and perhaps only heighten a sense of betrayal. This type of mistrust (over money, over behaviours) appeared to pre-exist the beginning of the collaborative process in one case in the study, evidenced by the assertion of one client that she had previously taped the couple's conversations about possible divorce settlements without her husband's knowledge. (Case 7, client 1, entry interview, unit 22) This case left the collaborative process without a settlement.

On the other hand, judgments about trust are always subjective and can usually be second-guessed. In another case (Case 12), the couple negotiated a complex settlement of their financial assets, including the dissolution of their business, in a very short period because of impending bankruptcy. During the negotiations, the wife was diagnosed with breast cancer and her husband told her that he was having a relationship with one of her friends. Despite these apparently trust-breaking issues, the case settled. However, within a month, the husband filed in court for a variation of the agreement. Where there had been the appearance of trust, there was none. It may be that where a cluster of factors arises that suggests the potential for mistrust or betrayal, lawyers and other collaborative professionals should use their best judgment to advise these clients to avoid the collaborative process.

Another possible threshold for collaboration may be a willingness and ability to participate in four-way discussions. Aside from the potential for intimidation (see the discussion earlier in this section), there are other circumstances in which one party may simply be unable to contribute to this dialogue in a meaningful way. In one case (Case 4), one of the parties was almost entirely silent during all the four-way meetings. A minimum level of willingness and ability to participate may also be an important benchmark for taking cases into CFL.

Finally, there is some discussion about the suitability of high-conflict cases to the collaborative process. This turns on perceptions of the ability of collaborative lawyers to manage four-way meetings with high-conflict couples.[79] A number of clients gave their lawyers failing grades for their ability to handle high levels of tension and emotionality in the four-ways. Consider the following description:

The first four-way was a huge fight. The lawyers just sat back and looked amazed…they should have done a better job of screening us at the outset so this would be expected. Have lawyers not been trained to manage the process?…[T]he lawyers seemed shocked that the clients had emotional baggage—but this was a 24-year marriage. What did they expect? Case 7, client 1, entry interview, units 56-61

Similar comments were made by one of the clients in Case 8, and again by a client in Case 11. It seems likely that, without specialized training, most lawyers are not able to handle a high level of emotional conflict. Another related problem is how, without diagnostic tools, lawyers can identify cases with complex family dynamics that may become high-conflict cases. This study specifically solicited the commitment of moderate- (rather than low- or high-) conflict cases going through the collaborative process. It is telling that 4 cases out of the 16 included as case studies in fact became extremely high-conflict battlegrounds, after an initial orientation suggested otherwise to the participating attorneys. Two of those four cases remained in the collaborative process at the close of the case study period, suggesting that high-conflict cases that attempt collaboration may last longer than expected. One had been settled and one had ended without settlement.

Many collaborative lawyers realize that a coach could help them and their clients. Some lawyers wonder whether one or both clients in high-conflict cases, which would otherwise be unsuitable for collaboration, should work with coaches. Coaches might also assist with diagnostic evaluation (see the discussion earlier in this section), where such help seems appropriate. Learning to recognize at least some of the warning signs of high conflict is surely a skill that collaborative lawyers can learn.

D. Lawyer-Client Privilege

In all CFL retainer agreements, clients relinquish the right to formal discovery. However, what retainer agreements say about the extent of the disclosures required, where these can be made and the sharing of information generally considered to be privileged varies enormously. Some of these provisions may, in effect, waive traditional lawyer-client privilege where they appear to go further than the conventional approach to disclosing information that a court would find relevant.

To illustrate the different approaches, here are three examples taken from collaborative retainer agreements:

  • The parties and attorneys agree to give complete, full, honest and open disclosure of all relevant information, whether requested or not.[80]
  • You agree to make full disclosure of the nature, extent, value of and all developments affecting your income, assets and liabilities. You authorize me to fully disclose all information which in my discretion must be provided to your spouse and his or her lawyer.[81]
  • All four parties are to deal with each other in good faith and to promptly produce all relevant information reasonably required including the disclosure by the clients of all their assets, income and debts.[82]

The differences between these three approaches may be subtle, but they have the potential to create some confusion in the mind of the client and potentially undermine informed consent to the waiver of privilege.[83] The reliance on what Carrie Menkel-Meadow describes as settlement facts rather than on a strictly legal interpretation of what a court might require[84] inevitably leads to some uncertainty and variation in practice. In particular, the way in which collaborative lawyers interpret the parallel commitment in most retainer agreements to act in good faith often determines what type of information they deem to be relevant. For example, in Case 3, one spouse was asked to bring her credit card statements to a four-way meeting so that her husband could review the expenditures that he believed were being reimbursed to her by a new partner. The lawyers agreed that the chances of this information being legally relevant to the question of support were marginal, but that the concern of the husband about the new relationship was so high that it would help the negotiations for this disclosure to be made. As one put it, "[I]n practical terms, [X] needs to know this information in order to move on." (Case 3, lawyer 2, mid‑point interview, unit 35) The wife, however, felt that her privacy was being unnecessarily invaded. This is the type of judgment about disclosure that is difficult for collaborative practitioners to anticipate and warn clients of in advance. In effect, clients agree to put this discretion into the hands of their lawyer and risk the lawyer withdrawing if they do not comply.[85]

A further difference that emerges in collaborative practice is that some retainer agreements require a sworn statement of full disclosure.[86] Another variation is the extent to which four-way meetings are regarded as the sole forum for settlement discussions, removing the potential for confidential lawyer-client advice and consultation outside these meetings. For example, the Medicine Hat group (Site visit, lawyer 3) and the Tampa Bay group[87] both prefer not to meet with clients outside four-ways, although this is not the norm of collaborative practice. Again, clients need to know this and understand the potential impact on lawyer-client privilege in order to ensure informed consent.

E. Pressure to Stay in the Collaborative Process

There is an obvious question about whether the investment in a collaborative process—time, money, emotional energy and the working relationship developed with the collaborative attorney—proves to be a form of entrapment that prevents clients from withdrawing from the process. Some clients commented on the investment their own lawyers had in making the process work. For example,

I think the lawyers can't be objective because they want this process to work. [My lawyer] said I could step out of the process anytime I wanted to. In fact, that wasn't very helpful! Field visit, client 7

In one case study file, one of the clients clearly experienced a form of entrapment:

Now that we're this far, it's hard to leave. I have already spent around [$X] and all of this time—what do I have to show? Case 8, client 2, mid-point interview, unit 42

A degree of investment and subsequent entrapment is inevitable in any dispute resolution process that goes beyond a short meeting; it is not a problem that is unique to CFL. The additional burden placed on CFL clients, however, is that they must recommence their case with a new lawyer (see also the previous discussion in section 4(E)). The lawyer and client must constantly review their progress toward goals and alternatives, to avoid at least the perception of pressure to remain in CFL.

F. Lawyer-Lawyer Relationships

The interaction between lawyers working on a collaborative file is quite different from the conventional arm's-length relationship that exists in many (although not all) family files. The study did not look closely at this dimension of the collaborative process but did note a few comments by clients who felt somewhat uncomfortable about the closeness of their lawyer to the lawyer for the other side, or even with their spouse. One client commented her lawyer "wanted to chat up my husband and bond with him." (Case 7, client 1, entry interview, unit 35) This type of comment was rare, but it shows the importance of ensuring that clients understand the type of rapport that CFL lawyers may wish to establish with the other spouse.

Other clients acknowledged the importance of the two lawyers trusting one another and the results that this produced. (Case 13, clients 1 and 2; Case 9, clients 1 and 2) However, this issue should be kept under scrutiny to ensure that clients do not feel that the lawyers on the file are "ganging up on them," or that their own lawyer's relationship with their spouse is uncomfortable for them.