Our conversation at our last Friday Happy Hour became very spirited over the question of what is material and what isn’t. IACP Ethical Standard 3.1A requires the full and affirmative disclosure of all Material information whether or not requested. What did the writers of the Standards have in mind as the definition of material?
If one of the Collaborative attorneys contacts the neutral mental health professional and requests that the MHP meet with that attorney’s client to determine if, in the MHP’s opinion, the client is capable of understanding the financial aspects of the matter. The attorney is not looking for a diagnosis. The MHP meets with the client and informs the attorney that the client seems fine.
Is that information material? Must the MHP disclose this information to the other side?
What if one of the Collaborative attorneys contacts the financial neutral and requests that the financial neutral review the bank statements in his/her possession to make sure that the attorney’s client is telling the truth when stating that no marital funds were spent on his girlfriend. The other side knows that there is a girlfriend but believes the husband’s claim and has not questioned whether money was spent on the relationship. After reviewing the records, the financial determines there is no dissipation. Must the financial neutral disclose the fact that he was requested to do this work? Because of the findings that no dissipation occurred is this material if the wife already believes it didn’t occur?
The discussion became lively when several of the MHP’s on our call felt that the minute one side requests any form of investigation or questions anything, then the issue is material.
So again the question is….Is everything Material?
Not looking to avoid the teamwork aspect of collaborative under 3.4 and full transparency in the process, I am concerned that if everything is deemed material and therefore needing to be disclosed, including “off the record” comments or questions with neutrals, will this stifle attorneys in being able to fully represent their client’s interests. And if the neutrals cannot speak amongst themselves without having to disclose the conversation or the fact that they even had a discussion about the case, will this stifle the neutrals in being able to help the team come to a resolution.
Similar to the provision of privacy to not disclose all that goes on with the professionals, should the team members be able to have the same right not to disclose everything said between them, individually and not as part of the team?
“Materiality” is a legal term borrowed from the rules of evidence. An item is “material” if it is substantive, as opposed to procedural, and refers to a thing that is “more or less necessary,” according to Black’s Law Dictionary, “to sustain the legal claim.” Its use, in my view, narrows the scope of what is to come to the table. While the collaborative process changes the face of many of our legal traditions and helps sustain the couple’s abilities for self-determination, let’s not forget that, in the end, a collaborative divorce remains a legal process. For that reason, what is required of a collaborative case is the presence of two clients, two lawyers and a participation agreement. Further, when interpreting statutes, we recognize that words have specific meaning, that there are many words that could be used, and when a choice to use a word is made, the legislature has selected the word that most closely reflects the legislature’s meaning. So, for example, if the legislature wanted to include things that could become emotional triggers, or things that are more procedural in nature, like the communication between the financial professional and the attorney in your hypothetical – but not necessary to sustain the claim of divorce, or equitable distribution, or custody, they might have used a completely different word or phrase, like “at issue,” or “underlying the divorce.” But they didn’t. They used “Material,” a word that any lawyer would understand to be interpreted narrowly, not broadly. This definition also makes sense to me as a way to keep the collaborative process focused on accomplishing the divorce with the proper amount of support without laying every emotional – or non-material – issue bare, thereby protecting the reputation of the process itself, by helping clients understand that this is what is expected; an efficient, respectful process.