Collaborative Practice (Malpractice?)

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.”  That’s fair.  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.”  Uh oh.  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.