Ah Pauline,
As articulate as ever. The devil is always in the details and nuances
and I could not agree with you more. We finally got "zealous" out of
advocacy, but... Our family law section is going to investigate whether
or not we should be more explicit in addressing the dilemmas that face
attorneys when client decisions impact children...
Any thoughts are greatly appreciated.
Ann
Gutterman Griffiths PC
10375 Park Meadows Drive, Suite 520
Littleton, CO 80124
Phone: 303-858-8090
Fax: 303-858-8181
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________________________________
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On
Behalf Of Pauline Tesler
Sent: Sunday, February 08, 2009 9:38 AM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: re[4]: [CollabLaw] Ethics rules
I want to go back to Ann's comment about "duty to the client, PERIOD."
That, as my husband likes to say at this point in a discussion, puts the
rabbit in the hat.
Who is this client that we owe the duty to, and what are that client's
interests (is an interest identical to a reactive impulse, for
instance?), and how do we as lawyers know anything about those two
questions? Indeed, what do our clients know about these things? does it
matter what emotional state the client was in when we thought we had the
conversation in which we believed we ascertained answers to those
questions? Are we working "above our pay scale" when we make
life-altering choices for/on behalf of our clients in the course of
representation based on our judgments, solely as lawyers, about these
matters during a period when we surely are obliged to assume that many
or most of our clients are at least some of the time quite distraught?
Putting aside the temptation to dive into the complex depths of what
neuroscience and neuroeconomics and behavioral psychology have to say
about the nature of choice and decision (surely we lawyers are expected
to know about such things as they move into the realm of generally
accepted scientific knowledge?), and putting aside philosophical
questions about the shift going on under our feet from 18th century
notions of individualism and "homo economicus" that do not match well
with what seems to be true about our species' biological makeup as that
impacts on matters of decisionmaking during family breakup and
restructuring, and just focusing on the mother lode for principles of
modern legal ethics-- here are some clips from the ABA model rules that
I like to use in trainings about the ethics of collaborative practice:
Counselor
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but to other considerations such as
moral, economic, social and political factors, that may be relevant to
the client's situation.
2 1
Rule 2.1 Advisor - Comment
Scope of Advice
[1] A client is entitled to straightforward advice expressing the
lawyer's honest assessment. Legal advice often involves unpleasant facts
and alternatives that a client may be disinclined to confront. In
presenting advice, a lawyer endeavors to sustain the client's morale and
may put advice in as acceptable a form as honesty permits. However, a
lawyer should not be deterred from giving candid advice by the prospect
that the advice will be unpalatable to the client.
[2] Advice couched in narrow legal terms may be of little value to a
client, especially where practical considerations, such as cost or
effects on other people, are predominant. Purely technical legal advice,
therefore, can sometimes be inadequate. It is proper for a lawyer to
refer to relevant moral and ethical considerations in giving advice.
Although a lawyer is not a moral advisor as such, moral and ethical
considerations impinge upon most legal questions and may decisively
influence how the law will be applied.
[3] A client may expressly or impliedly ask the lawyer for purely
technical advice. When such a request is made by a client experienced in
legal matters, the lawyer may accept it at face value. When such a
request is made by a client inexperienced in legal matters, however, the
lawyer's responsibility as advisor may include indicating that more may
be involved than strictly legal considerations.
[4] Matters that go beyond strictly legal questions may also be in the
domain of another profession. Family matters can involve problems within
the professional competence of psychiatry, clinical psychology or social
work; business matters can involve problems within the competence of the
accounting profession or of financial specialists. Where consultation
with a professional in another field is itself something a competent
lawyer would recommend, the lawyer should make such a recommendation. At
the same time, a lawyer's advice at its best often consists of
recommending a course of action in the face of conflicting
recommendations of experts.
Offering Advice
[5] In general, a lawyer is not expected to give advice until asked by
the client. However, when a lawyer knows that a client proposes a course
of action that is likely to result in substantial adverse legal
consequences to the client, the lawyer's duty to the client under Rule
1.4 may require that the lawyer offer advice if the client's course of
action is related to the representation. Similarly, when a matter is
likely to involve litigation, it may be necessary under Rule 1.4 to
inform the client of forms of dispute resolution that might constitute
reasonable alternatives to litigation. A lawyer ordinarily has no duty
to initiate investigation of a client's affairs or to give advice that
the client has indicated is unwanted, but a lawyer may initiate advice
to a client when doing so appears to be in the client's interest.
I believe our clients also, all else being equal, are entitled to
representation from an advocate who is not himself or herself
morally/ethically conflicted about a course of action that a client
wishes to pursue. I am not the only competent lawyer available to a
client and, particularly in collaboration, where there can be no
question of prejudice to the client arising from "abandonment" at a
critical juncture in litigation, my own moral compass tells me that I
should advise a client that I am unable to be wholeheartedly committed
to zealous advocacy aimed at a goal that violates my own values, and
that some other lawyer might do a better job for the client in that
regard. A client goal that I am convinced would be harmful to the
interests of an unrepresented child and that the client is determined to
pursue might constitute such a situation.
Pauline H. Tesler
Tesler, Sandmann & Fishman
163 Miller Avenue, Suite 4
Mill Valley, California 94941
Telephone: (415)383-5600
Facsimile: (415)383-5675
Web:
www.teslercollaboration.com <http://www.teslercollaboration.com>
www.collaborativedivorcebook.com
<http://www.collaborativedivorcebook.com>
www.collaborativepracticesfbay.com
<http://www.collaborativepracticesfbay.com>
Blog:
http://www.collaborativedivorcenews.com
<http://www.collaborativedivorcenews.com>
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On Fri, Feb 6, 2009 at 1:31 PM, Charles D. Stark, Esq.
<starklaw@xxxxxxxxx <mailto:starklaw@xxxxxxxxx> > wrote:
Duties to the client are rightfully constrained in some circumstances.
Going back to my original post, the lawyer's duty not to personally
violate the law transcends the duty to the client. The attorney, and
not the client, is responsible for the legal decisions in the handling
of a case; thus, we are 'attorneys at law," as opposed to attorneys in
fact, and stand in the client's shoes with regard to legal decisions.
Thus, also my original questions: is it unethical to advocate for
something other than the best interests of the children, or for more
than half of the marital property when those legal standards apply, and
our professional judgment so indicates. We operate primarily in the
area of equity. Duties focused on a client in a criminal case might be
more easily identified. Clearly, in practice, there are wide gray areas
here, but good judgment on the part of the attorney ethically should not
be displaced by an exaggerated sense of zealous advocacy. I believe
this should be more clear in our Collaborative work, than in polarized
litigation. Fortunately, in our work we have a collective choice of
how much weight to give the "law." I then see these questions in
Collaborative work more as a function of our skills and art to achieve
these ends while, at the same time, keeping the process client centered
and client empowered.
CHARLES D. STARK, ESQ.
Fountaingrove Corporate Centre I
3510 Unocal Place, Suite 200
Santa Rosa, CA 95403-0918
707-527-9900 / Fax: 707-527-7490
Email: starklaw@xxxxxxxxx <mailto:starklaw@xxxxxxxxx>
URL: www.sonomacountylawyer.com <http://www.lawyers.com/starkfirm>
From: CollabLaw@xxxxxxxxxxxxxxx <mailto:CollabLaw@xxxxxxxxxxxxxxx>
[mailto:CollabLaw@xxxxxxxxxxxxxxx ;<mailto:CollabLaw@xxxxxxxxxxxxxxx> ]
On Behalf Of Brian Urban
Sent: Friday, February 06, 2009 12:08 PM
To: CollabLaw@xxxxxxxxxxxxxxx <mailto:CollabLaw@xxxxxxxxxxxxxxx>
Subject: RE: re[4]: [CollabLaw] Ethics rules
It seems to me that "advocating" for a client within a collaborative
process means that we advocate for the client's choice of process and
not for the client's preferred resolution option. Therefore the lawyers
should serve as guardians of the process and advocate for everyone
remaining true to that process. If we instead choose to advocate for a
particular result that a client prefers, we have failed to let go of
outcome and we are therefore failing in our role to advocate for the
process that our client selected.
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>
[mailto:CollabLaw@xxxxxxxxxxxxxxx ;<mailto:CollabLaw@xxxxxxxxxxxxxxx> ]
On Behalf Of Beth Karassik
Sent: Friday, February 06, 2009 2:53 PM
To: CollabLaw@xxxxxxxxxxxxxxx <mailto:CollabLaw@xxxxxxxxxxxxxxx>
Subject: Re: re[4]: [CollabLaw] Ethics rules
Seems there are different perspectives how "duty to the client"
translates. Duty how? Pursuing/fighting/advocating for what the client
says they want in the context of their legal rights? Duty to serving
them and their well-being?
Beth M. Karassik, Ph.D.
Comprehensive Neuropsychological Services
1095 S. Main Street
Cheshire, CT 06410
203.271.3809
203.272.6968 FAX
www.clinicalneuropsych.com <http://www.clinicalneuropsych.com/>
drkarassik@xxxxxxxxxxxxxxxxxxxxxx
<mailto:drkarassik@xxxxxxxxxxxxxxxxxxxxxx>
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________________________________
From: Gary Direnfeld <gary@xxxxxxxxxxxxxxxxxxxx
<mailto:gary@xxxxxxxxxxxxxxxxxxxx> >
To: CollabLaw Moderator <CollabLaw@xxxxxxxxxxxxxxx
<mailto:CollabLaw@xxxxxxxxxxxxxxx> >
Sent: Friday, February 6, 2009 1:40:25 PM
Subject: re[4]: [CollabLaw] Ethics rules
Happy to accept that distinction.
Not sure it changes the basis tenet of the argument...
Gary Direnfeld, MSW, RSW
Interaction Consultants and I Promise Program Inc.
20 Suter Crescent,
Dundas, Ontario, Canada L9H 6R5
(905) 628-4847
gary@yoursocialwork er.com <mailto:gary%40yoursocialworker.com>
Parenting: www.yoursocialworke r.com <http://r.com/>
Teen safe driving: www.ipromiseprogram .com
Gary Direnfeld is a social worker and expert on matters of family life.
Courts in Ontario, Canada, have deemed Gary an expert on child
development, parent-child relations, marital and family therapy, custody
and access recommendations, social work and an expert for the purpose of
giving a critique on a Section 112 (social work) report.
Services include counselling, mediation, assessments, assessment
critiques and workshops. Go to his website to read his many articles and
view clips of television and radio appearances: www.yoursocialworke
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