All too often the divorce process is destructive.
Spouses emerge at the other end with almost half of what they had before and they like their spouse even less. Collaborative law
seeks to avoid unnecessary adversarial conflict and find a solution that is best for all parties.
The other benefit is that it is generally cheaper for everyone.
Many times litigants can “make the pie bigger” by discovering the underlying needs and objectives of all parties.
Our entire legal system compensates everything with money damages, but many times looking at what people want that money for—or why they want it, can reveal better ways of resolving disputes.
Sounds good right?
Collaborative representation is not for everyone.
One attorney writes on her blog
: “If you are looking for a process where the attorney uses any and all means to achieve the best possible outcome for you at the expense of your wife and family then Collaborative is probably not for you.”
But when does collaborative practice become MALpractice or an ethics violation?
(Yes, attorneys please send me hate email for posting this.)
California attorneys must follow the CA Rules of Professional Conduct. Rule 3-110
requires every attorney to act with reasonable diligence.
Many cases state that this diligence also includes “acting with dedication and deal, taking whatever lawful and ethical steps are available to vindicate a client’s cause.”
That required dedication and zeal may yield the exact destruction that the collaborative attorney is trying to avoid.
The ABA Model Rules (a national standard) allow for attorneys to limit their scope of representation, such as limiting representation to collaborative matters.
California has no such rule, but some case law
supports allowing attorneys to limit the scope of their representation.
There is no California case on point regarding whether or not a representation agreement to limit one’s representation to collaborative matters is effective in barring a claim that the attorney did not act with adequate zeal.
So, until then, attorneys need to:
1) Make sure that collaborative clients understand the process and want it;
2) Include in the written fee agreement a reference to the scope of representation—as collaborative and not adversarial; and
3) Be flexible enough to recommend to the client they stop the collaborative process if it is no longer in their best interest.
Everyone wants something for free. But why should an attorney charge for the initial consultation? How might this actually benefit the client?
- Your attorney isn’t listening to what you’re saying
During the initial consultation, clients and attorneys have divergent interests. Clients are focused on one question: what are my chances of success and what am I going to get? Attorneys are focused entirely somewhere else: is this a client that I want to represent and are they going to actually pay me? If the client pays even a nominal consultation fee ($100), the attorney’s focus shifts. They take the client more seriously. If the client is willing to pay something the attorney is less focused on the prospective client’s ability to pay in the future.
As a client, you want to do whatever you can do to get the attorney focused on the merits of your case, instead of whether or not the attorney is comfortable taking your case. Paying something as little as $100 can gain this shift in focus and actually get the attorney listening to what you’re saying.
- Duties to prospective clients
Most people think that if they go into an attorney’s office and get an initial consultation, and don’t hire that attorney, the attorney is only “out” an hour of his time. That’s not so. An attorney owes a duty to prospective clients. When you go in for a “free” initial consultation and tell an attorney about your case, after you leave, the attorney has a bunch of continuing duties. You go on a list and the attorney cannot represent people against you in this case, and possibly in future cases. The attorney may lose future business because he cannot represent someone against you in the future. The attorney has a continuing duty of confidentiality. Any notes and records he made during the initial consultation need to be maintained. The point is—there is an opportunity cost. The attorney may have to decline future representation of another person just because he talked to you for an hour.
Although any nominal fee charged for an initial consultation wouldn’t possibly cover damages in a malpractice action, clients need to recognize that every time an attorney has an initial consultation with a prospective client—he leaves himself vulnerable to screwing up and being sued for it. Attorneys shouldn’t expose themselves to potential liability and get nothing.
- The first hour (of consultation) is the most important
Many times a client goes into an initial consultation and within an hour they learn everything they need to. The statute of limitations bars their claim. The attorney tells them they can resolve the issue via self-help with a form at the government center. They have no legal claim. Different attorneys will give you different numbers, but something like a quarter of all initial consultations answer everything the client needs to know.
- You don’t expect your doctor to do it
For some reason clients expect lawyers to give them something for free, but when is the last time you got a second opinion from a doctor and asked them not to charge you unless you choose them as your new doctor? They would look at you like you are a crazy person. Other professionals charge you for their time whether or not you continue to use them.