I've been in dialogue with Lynn Boswell for some time now about the proposed
Dateline show that Gregg Herman posted a message about, and I want to pass on
another perspective about this. It would surely be superb public information
for a full hour show like this to focus in-depth on collaborative law, and Lynn
seems to be a very reputable, responsible journalist with authentic concern for
journalistic ethics as she approaches this story.
But here's my concern. Initially, when Lynn first began talking with
collaborative lawyers about doing a story on CL, she ran into the reality Gregg
points out, which is that clients simply don't want to broadcast their
personal, painful divorce stories in identifiable ways on national tv. So, the
offer was made that absolute client anonymity could be guaranteed if clients
would agree to let interviews, or even actual "real time" footage of their
collaborative divorce experience, be taped and used in connection with a show
about CL. Even under those circumstances of complete anonymity, some of our
very respected colleagues took the view that it was not ethical even to propose
this to clients, because it could not possibly serve the interests of the
client or the restructuring family to have this intimate, painful passage be
invaded by cameras and publicity to this degree. My own conclusion was that
with the guarantee of visual and substantive non-identifiability, I felt I
could propose it to clients, though my own belief was that it was still quite
unlikely that any sensible couple would agree to do this.
So, I've been offering that option to incoming clients for some months now, and
to my surprise, a couple this week did agree, both sides plus the other lawyer
, to permit taping of their entire collaborative divorce process, provided the
clients could not be identified visually or by the content of the taped
footage, in what was ultimately broadcast. I presented that to Lynn and learned
this morning that NBC will not do the story unless they can obtain and retain
the right to broadcast videotaped footage of the entire collaborative process
with the clients fully identifiable visually and vocally. This means that while
clients' names and location won't be presented, their faces and voices will,
and thus, that knows them who watches Dateline will potentially be able to see
the entire divorce negotiation of people they know broadcast on evening
television, with the clients and attorneys having no control over what gets
seen. If the clients have kids, the children presumably would go to school and
have the experience of dealing with friends' comments about their parents'
divorce.
I told Lynn that it seemed to me this presented big ethical problems for a
conscientious collaborative lawyer --especially as most of us feel we are
committed to work in the best interests of the restructuring post-divorce
family. From the point of view of a professional advisor like a collaborative
family lawyer (at least as I see it), there is no apparent benefit to the
client and family that would outweigh the foreseeable detriment to a client and
the family from being on display identifiably in this way. The lawyers who
bring clients to Lynn and who are featured on this show in the way she is
requiring will get invaluable publicity (not a bad thing at all-who wouldn't
want that?) but at the cost of considerable invasion of client privacy. My own
feeling is that it puts us in a fairly obvious conflict of interest position to
propose such a thing to clients, knowing what we do know about the difficult
and private nature of the divorce experience and the stresses of even
collaborative negotiations, particularly given the considerable personal
influence over clients that we have. I proposed several alternative approaches
to Lynn that I thought might possibly reduce the ethical problems sufficiently
to make it more acceptable to propose to clients that they open up their entire
divorce process for taping (e.g., altering the appearance of their faces,
shadowing them in silhouette, etc., or else taping only the first and last
fourways, not the ones with potentially awkward personal content, or else using
many rather than one couple and taping only a little bit of the experience of
each couple) but these were all unacceptable to the network.
So that's where it sits. I continue to think this is a very troubling offer--a
devil's bargain, to my mind. If the prospect of such an in depth show weren't
so attractive for all our collective professional objectives and goals, it
wouldn't be bothering me so much-so I felt at minimum I wanted to describe the
ethical minefield I see here, for others to wrestle with before jumping.
Pauline
Pauline H. Tesler
Tesler, Sandmann & Fishman
163 Miller Avenue, Suite 4
Mill Valley, California 94941
Telephone: (415) 383-5600
Facsimile: (415) 383-5675
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