Well said, cMichael!
I would also like to reinforce the message that lawyers should be very wary
of allowing their clients to believe that they are "acting in a
collaborative way" when there is no collaborative process agreement complete
with the disqualification provision. Without the disqualification provision,
the lawyers and their clients must recognize that they would be in a
traditional adversarial negotiation in which the rules are quite different.
Ethical and malpractice traps abound if one or both clients are not entirely
clear about what negotiation process is being used and what is to be
expected.
Brian M. Urban
Urban & Pozzuto LLC
Collaborative and litigation alternatives in family law
55 Public Square, Suite 2001
Cleveland, Ohio 44113
Tel: 216-241-4244
Fax: 216-241-1677
_____
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf
Of carl Michael rossi
Sent: Thursday, January 27, 2011 10:36 AM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: [CollabLaw] WACTD?
ASSUMING that it is indeed the client who doesn't want the disqualification
provision [i.e., I generally do not believe that to be the case. in
particular, I do wonder about this other professional not mentioning this
until the 1st 4-way. Nice way to make YOU the bad guy and keep HIM employed.
Are you saying this guy has done that twice? hmmmmm]
questions to explore include with the client(s) include....
do you trust each other enough to each believe that the other will disclose
all necessary information?
do you believe each other will honor the agreement you reach here?
is there something that you believe you will need that you also believe you
have no chance of getting unless someone forces the other person to give it
to you?
are you each willing to consider what the other might need and work to meet
those needs as well as yours?
are you willing to do some work in order to improve the way you two discuss
your different needs?
are you concerned that we as attorneys won't give you our full and best
efforts to support your process UNLESS we have the guarantee that we'll be
able to charge you for all the extra requirements of court? [I own that this
might be directed a bit more at the judgment I have right now of the other
attorney....so think this through for yourself. Especially before wondering
it in the presence of the client(s).]
Depending on the answers, CP simply may not be appropriate for this
couple.....
As for tossing the client to the 'wolves', I honor the desire to
protect, but unless you are prepared to fight like the 'wolf' you
anticipate, it might not be wise for you to accompany the client into their
den. I say this not about you personally, Tom, but from my belief that
there is a fundamental difference between 'settling a case' in a litigated
process and 'solving a problem' in the Collaborative process. Also, since I
first read about Cooperative law...essentially what your colleague is
wanting to engage in....I have thought that it is a malpractice claim
waiting to happen. If I know that my handling a trial in this matter is
even a possibility, that MUST shape how I relate to everything leading up to
it. If I've done or allowed something that compromises my client's chances
at trial....isn't that the stuff malpractice claims are made of? And isn't
that at the heart of CP? How do we ever even suggest that 'you two can
reach an agreement that might not be possible in court' or that in CP 'you
will be able to directly address your needs' while at the same time
saying....but just in case..."if 'we' can't get you what you want in open
discussions then 'I' will surely be able to get it for you at trial"????
I don't see how such a mutant process can end in any settlement other
than one that the two lawyers agree 'the law allows', or 'requires' without
exposing one or the other of them to a post-decree claim that 'you sold me
out knowing that I could have done better by going to trial'. I believe
that litigation can be done with appropriate openness, indeed with
conscience. Just not with the same openness and opportunity as can exist
when the attorneys do not have to be distracted by their obligation to
prepare for trial. [As a litigator I always began preparing for trial from
the day I met the client. I never saw settlement discussions as something
separate; that I would only think about what am I going to do at trial if I
couldn't make a 'settlement' happen. Maybe I was odd that way. It would
not be the first or only way! LOL]
btw...."Recovering lawyer"?? 'zat it?
InJoy!
cMr
Collaborative Practice Chicago
Divorce Without Warfare
carl Michael rossi, M.A. J.D., L.P.C.
Attorney, Mediator, Coach, Counselor
773-292-3456
<mailto:cMr@xxxxxxxxxxxxx> cMr@xxxxxxxxxxxxx
<http://www.cpchicago.net/> www.CPChicago.net
Executive Director, <http://cppillinois.com/> Collaborative Practice
Professionals of Illinois
Apply Collaborative Practice to many types of disputes. Training available
<http://www.slideshare.net/carlMichaelrossi/flyer-abney> here.
On Thu, Jan 27, 2011 at 8:13 AM, Tom Nagel <tomnagel@xxxxxxxxxxx> wrote:
WACTD? stands for What's A Collaborator To Do?
I've been WACTD twice in recent months when a fully trained
collaborative practitioner has announced in our first 4x meeting that their
client does not want to sign the collaborative law agreement (in one case)
or wants to delete the attorney disqualification provision from the
participation agreement. Both times the other attorney wanted to continue
working on the case with me and my client, but without it being a full
fledged collaborative case.
So do you play along, or throw the client to the wolves of litigation,
or is there some other option?
Here's what I did. I proposed the question to this forum. (Next best
thing to posting the attorney's picture on YouTube.)
Thoughts?
Tom H. Nagel
Judicatum Procurator Recuperatio
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