I agree with cMc in that I would have a concern about the provision in
our collaborative participation agreement that says: "We will maintain a
high standard of integrity and specifically will not take advantage of
mistakes or miscalculations, but will disclose them and seek to have
them corrected."
Some folks (those who think collaborative is unethical) have suggested
that this understanding creates a legal duty to the spouse that the
attorney does not represent. While I don't agree, I suppose there's a
slight risk of a future negligence or breach of contract action by an
unhappy spouse against the attorney who did not represent him/her even
when both parties are represented in the collaborative process. In a
situation where one attorney has withdrawn, this provision becomes more
problematic, I think, and as a practical matter creates more risk than I
would be willing to take on, even to help spouses avoid unnecessary
conflict.
I like the idea of recommending to both spouses a mediation process. I
think I would then refer my client to another collaborative attorney
willing to represent him/her in conjunction with the mediation process
without having signed a collaborative participation agreement.
-------------
Mark A. Springfield
234 Fayetteville Street, Suite 200
Raleigh, NC 27601
(919) 755-1923
-----Original Message-----
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On
Behalf Of John McDaniel
Sent: Friday, May 01, 2009 7:10 PM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: [CollabLaw] Continuing representation
I have a collaborative case where my colleague and his client have had a
falling out and he is withdrawing from her representation. His client
wishes
to continue to try to settle without going to court, but does not intend
to
retain new counsel. My client wishes that I continue to represent him,
with
the clear understanding that I could not proceed with litigation. My
question is, can I continue to represent him? Our local protocols do not
cover this situation.
Thanks in advance,
John M. McDaniel
Helon & Manfredo, Attorneys at Law
1318 East Shaw Ave., Ste. 180
Fresno, CA 93710
559/226-4420
559/226-1524 (fax)
Certified as a Family Law Specialist
By the State Bar of California Board of
Legal Specialization
