Wisconsin Lawyer
Vol. 75, No. 5, May 2002

• Collaborative Divorce and Malpractice: A Debate

Collaborative process, itself, doesn't lead to malpractice

Read the other viewpoints:

• Malpractice Risks of Collaborative Divorce
• Collaborative Divorce is a Proven, Ethical Solution

by Daniel R. Cross & Jolene D. Schneider

Many attorneys are attracted to collaborative family law. For the right spouses, collaborative divorce provides a civil, open process for achieving fair and creative results with the least damage to family relationships. For the practitioners, it is both professionally challenging and invigorating. Gary Young asserts that the attractions of collaborative family law are dangerous traps, ensnaring the lawyer in a web of malpractice.

Mr. Young's entire analysis hangs on his assertion that the collaborative lawyer, by signing the initial collaborative divorce documents, makes contractual commitments to the "other spouse," thereby creating a direct professional relationship with the "other spouse." Mr. Young's assertion stands in sharp contrast to the actual collaborative process. Each party knows which attorney is theirs. There is no blurring of the attorney-client relationship.

The collaborative documents do several things. They state each party's desire to resolve the divorce through the collaborative process. They describe the collaborative process. They set out each party's commitment to honor the collaborative process, as long as the parties remain in the collaborative process. Family lawyers regularly enter into similar agreements without fear that they have taken on the "other spouse" as their client. For example, most lawyers regularly employ many of the collaborative techniques in their practices, including informal discovery, joint appraisals, and civil and nonthreatening behavior. At the end of the day, collaborative law is an alternative dispute resolution process, and family lawyers regularly employ other forms of ADR.

What the collaborative documents do not do is bind either party or either attorney to the collaborative process. Each commits to the process for only so long as each wishes to continue the process. Mr. Young avoids this important component of the collaborative process in his analysis, and perhaps he must. His assertion that the collaborative documents create contractual duties between the lawyer and the other spouse is a tough argument to sell when there is no limitation upon the lawyer's ability to withdraw from the collaborative process. The solutions to the two problems posed in his article are clear when the voluntary nature of the collaborative process is kept in mind. If a tax error is discovered that the client does not wish to correct, or if remarriage plans are made that the client does not wish to disclose, then the collaborative process is simply over. There is no double bind for the lawyer.

Mr. Young correctly highlights the importance of obtaining the client's informed consent to begin the collaborative process. And he rightly points out the difficulty of divining and discussing with the client all possible risks attendant to the collaborative process at its outset. He is wrong, however, to suggest that the client's informed consent is obtained once and irrevocably. The lawyer's obligation to the client, and the solution to the dilemma posed by Mr. Young, is the continuing obligation to discuss issues and to receive appropriate consents from the client as the collaborative process unfolds. The option of reverting to traditional litigation is always open. The client's decision to use the collaborative process is not made the first day. It is made every day.

Collaborative lawyers have an exciting and successful new process to offer their clients, but the collaborative lawyers' professional obligations owed their clients are the same as any family lawyer's. The collaborative lawyer must exercise appropriate professional judgment in recommending the collaborative process, monitoring the process, and, if the process is not working, advising the client to leave the process. A lawyer can surely commit malpractice by misusing the collaborative process, just as in the traditional adversarial process. Mr. Young fails, however, to make a convincing argument that the collaborative process, itself, leads the lawyer to malpractice.

Wisconsin Lawyer