Hello ListServ:
We in Minnesota are again revisiting revising our Participation Agreement,
and have ongoing efforts on our Protocols. We are interested in hearing from
other groups about how you have handled some issues about confidentiality.
This issue arises in a number of ways, and has a variety of nuances. We are
looking for an effective way to best handle this subject.
Even though we are practicing in a collaborative model, with an emphasis
on full disclosure, we recognize that clients may have things they do not
with to share with the other party, or even the rest of the team.
Sometimes, this may innocuous. I have a boyfriend, and I don't want
my husband to know this until we can get things completed. Assuming that there
is nothing about the fact that this client has a boyfriend that would
directly impact substantive concerns of her spouse, there may be no need for
disclosure.
A second scenario might be, my client has just learned that he has
cancer, and will be starting some cancer treatments. He does not want this
information disclosed to his spouse. Again, assuming that there are no
ramifications to the children that would directly impact the other spouse,
most of us
would agree this information may well not need to be disclosed.
A third scenario, one party just learns that they have AIDS, and
does not wish this information disclosed. The potential risk to the other
spouse
may be substantial.
A fourth scenario, is flat out wrong doing. A client has a hidden
asset that the other party has no knowledge of, and does not want this
disclosed.
A fifth scenario is that a client reveals to the attorney that he
intends to kill the other spouse. Consequences to this could be fatal.
In each of these cases, assume that the information is conveyed to the
attorney with the specific directive that it NOT be disclosed.
Most likely, in each of the first two scenarios, the attorney is under a
duty to NOT disclose the critical information to the other party, the other
party's attorney, or anyone else on the team, and there is nothing that would
jeopardize the collaborative case remaining in the collaborative model.
In scenario three, the plot thickens. Client has AIDS, and does not want
to tell his/her spouse. Failure to disclose this information could have
profound implications for the other spouse - or not. I would believe that the
spouse's right to know this information would be germane to the issues in the
divorce, and probably should be disclosed. If the client refuses to allow the
attorney to disclose this information, I think it would justify the attorney
withdrawing from the process.
In scenario four, there can be no question but what the attorney's
obligation should be to withdraw if this information is not disclosed.
In the final scenario, I understand that the attorney has an ethical
obligation to report this information to the police.
Now, the issue becomes what must the attorney do when he/she withdraws
from the case? We conclude that the attorney may NOT disclose the confidential
information, and must simply withdraw.
What we are wondering is whether any other practice groups have
established policy with regard to this issue, and, if so, how do you handle
these
situations?
Has anyone considered using a clause in regarding privileged information
in the Participation Agreement? If so, what does it say?
We are considering adding a provision that would say to the
Participation Agreement stating that the parties must specifically advise the
attorney if
they wish any particular information shared to be kept confidential. We want
to give the attorney some protection in the process for sharing information
in the spirit of full and fair disclosure.
Your comments will be most appreciated.
Take Care
Bruce D. Peck
Bruce D. Peck
Collaborative Family Law
14761 Oak Run Lane
Burnsville, MN 555306
(952) 435-6799
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