Re: [CollabLaw] Attorney-Client, Psychotherapist and Mediation Privileges
- From: "Kimberly A. Schavey" <kimberly@xxxxxxxxxxxxxxx>
- To: CollabLaw@xxxxxxxxxxxxxxx
- Date: Wed, 31 Jan 2007 16:59:22 -0700
James: My interlineated thoughts from New Mexico below.
Kimberly A. Schavey, Attorney at Law
3900 Juan Tabo Blvd., N.E.
Albuquerque, New Mexico 87111-3984
(505) 839-1965
(505) 298-3939
Member, New Mexico Collaborative Practice Group
www.nmfamilylaw.com
Kimberly@xxxxxxxxxxxxxxx
On Jan 31, 2007, at 4:46 PM, James Hallett wrote:
My client's statements to me are within the attorney-client
privilege. That's easy.
My client's statements to his or her coach are, at least here in
California, almost certainly within the attorney-client privilege.
That's pretty easy. Does that mean I can instruct the coach that
the coach is forbidden to comply with mandatory reporting
requirements that would otherwise apply to therapists?
I would say no. Here in NM the lawyer has mandatory reporting
requirements also, but not for Toussaint issues, which I guess is
what you are referring to. I'm not sure if Toussaint duties apply to
a therapist acting as a coach.
How about my client's statements to spouse's coach and/or spouse's
attorney? Is there an argument that those statements are within
attorney-client privilege?
No, I think they are confidential pursuant to the Collaborative
Commitment, and pursuant to the rule of evidence here in NM that says
settlement negotiations are not admissible in Court.
Are my client's statements to the spouse's coach within the
psychotherapist-patient privilege?
No, because they are not working as a therapist, there is no
therapist privilege, to my mind.
If not, is the mediation privilege all we have?
Privilege-wise, I guess so. Here it is a "settlement discussion"
exclusionary rule in the rules of evidence (New Mexico).
Does California's 2006 legislative decision not (for now) to
include collaboration in the statutory mediation privilege
constitute a legislative history to show that collaboration is not
within the mediation privilege?
It looks like it. Looks like the legislature screwed up, because
collaboration IS mediation. At least to my essential understanding
of both terms.
If the legislature could make a legislative history that the sun
rises in the west, which could cause Californians to look westward
every morning, then I suppose you should be worried. Collaboration
IS mediation, whether the legislature wants to recognize it or not.
Just like gays are people too. And women, and so on.
Please know, ya'll, that I am speaking from my own perspective,
speaking my own truth. These are MY understandings of collaboration
and mediation. You do not need to agree with me. I hope you can
give me the freedom not to agree with you.
Kim Schavey
___________________________________________________________________
James M. Hallett, CFLS, CCLS, (State Bar of California, Board of
Legal Specialization)
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