I'll just add that the number of people involved - 4- or 6-way - is just not
a problem. The attorney-client privilege umbrella can be huge. In complex
litigation it can cover hundreds of people - even thousands. And it's not
limited to lawyers' assistants or employees. I've had rooms full of a mix
of professionals not unlike a collaborative law case - psychologists and
psychologists and communications experts and financial specialists - and
either the A/C privilege, the work-product doctrine or a similar protection
covering consulting experts applied to their communications.
And folks are right that it's not the therapist-client privilege we're
talking about here, because CP coaches are not doing therapy. The question
is whether the attorney-client privilege expands to include them. My gut
reaction - based on many years of fighting many privilege battles - is it
would. But I haven't done the research to confirm that. (There might be
some factual/analytical tweaks that wouldn't be obvious to someone
unfamiliar with CP, which I won't begin to speculate about here, but I don't
think they'd be insurmountable.)
Another aspect of protection could come from the evidentiary rules regarding
settlement discussions, though generally this protection is not as extensive
as privilege.
And what's happening with the Uniform Collaborative Law statute on the
privilege issue? It would do wonders if that statute created a
collaborative practitioner-client privilege.
Jeff Bean
The Bean Law Firm PLLC
Your Solutions - Beyond the CourthouseT
Mediation Services. Collaborative Practice.
Seattle 206 794 5585
This message may be privileged, confidential or otherwise protected by law.
Any use or distribution by anyone other than the intended recipient is
prohibited. If you received it in error please let me know.
_____
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf
Of Peter B. Sandmann
Sent: Monday, January 26, 2009 1:54 PM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: [CollabLaw] Confidentiality/ Privilege for MHP in Collaborative
Practice
Here is what one California Court has said about the scope of the
attorney-client privilege. Perhaps this helps:
INSURANCE CO. OF NORTH AMERICA v. SUPERIOR COURT, 108 Cal.App.3d 758,
771 (1980):
To sum up, we construe section [Evidence Code] 952 to mean that
attorney-client
communications in the presence of, or disclosed to, clerks,
secretaries, interpreters, physicians, spouses, parents, business
associates, or joint clients, when made to further the interest
of the client or when reasonably necessary for transmission or
accomplishment of the purpose of the consultation, remain
privileged. (San Francisco v. Superior Court (1951) 37 Cal.2d 227,
234-237 [231 P.2d 26, 25 A.L.R.2d 1418]; Cooke v.
Superior Court (1978) 83 Cal.App.3d 582 [147 Cal.Rptr. 915];
De Los Santos v. Superior Court (1980) 27 Cal.3d 677
[166 Cal.Rptr. 172, 613 P.2d 233].)
Peter B. Sandmann
Tesler, Sandmann & Fishman
163 Miller Avenue, Suite 4
Mill Valley, CA 94941
(415) 383-5600 telephone
(415) 383-5675 facsimile
pbs@xxxxxxxxxx <mailto:pbs%40lawtsf.com>
This message may include privileged attorney-client communications.
If you are not the intended recipient, please delete and destroy all
copies, and notify this office. Thank you.
On Sat, Jan 24, 2009 at 1:15 PM, Debra Bellings-Kee <dembelkee@yahoo.
<mailto:dembelkee%40yahoo.com> com> wrote:
Thank you all for your thoughts on this important topic.
Jeff Bean, I agree, the MHP might contract not to appear in a
subsequent litigation (by virtue of the signed informed consent
agreement with the coaching client), however, that will not stop the
subsequent attorney from subpoenaing the MHP to testify! I might
assert privilege, but according to my licensing board (for California
marriage family therapists and for licensed clinical social workers)
asserting the privilege would not work. We aren't protected because
we are performing "coaching" services, not psychotherapy. (It's
currently a grey area for California psychologists).
Would the MHP services be privileged under the attorney-client
privilege or as attorney work product? Does that attorney-client
privilege cover 4-way or 6-way collaborative meetings or
conversations by and among team members? I'm not sure, but I don't
think the privilege statute envisions more than conversations between
an attorney and his/her client.
Another thoughts for MHP's out there. If your liability policy
covers psychotherapy services, AND if coaching is NOT considered
psychotherapy, think about adding a rider to your policy to cover
your services as a collaborative coach or as a child specialist!
Does anyone know whether any of these questions have been tested by
any courts out there? If so, kindly let me know.
Again, thank you for your thoughts.
Warmly,
Debbie
Debra Bellings-Kee, MFT, JD
Collaborative Coach/Child Specialist
1030 Sir Francis Drake Blvd.
Kentfield, CA 94904
220 Montgomery Street
San Francisco, CA 94104
(415) 454-8408
www.debrabellingskee.com
