From the desk of My Collaborative Team President, Edward S. Sachs, ACP
This past week a financial neutral contacted me with the following dilemma. Under newly passed Florida Supreme Court forms there is a financial disclosure of income affidavit that is supposed to be filed if no other information is being filed with the Court, as in most Collaborative matters. I won’t get into the details because evidently there is some ambiguity on the requirement, but the question raised by the financial neutral is still important. In his case, when he brought the requirement to the attorneys they responded with, “let us do the lawyering.”
So where does the line get drawn between the financial neutral’s responsibilities to our clients and over-stepping our bounds?
If the financial neutral knows that a lawyer in a Collaborative matter is either mis-representing the law or has failed to provide the client with what the neutral believes is critical legal advice, what is their ethical and moral responsibility?
While we try not to let the law get in the way in the Collaborative Process, clients still have the right to know, and we (all professionals) have an ethical obligation to inform the clients, of any information (including the law) when it is material to their decision-making.
So, I will repeat the question posed at the beginning. When should the neutrals let the lawyers do the lawyering, and we “mind our own business?”
The response, “let us do the lawyering” sounds (dare I say it?) uncollaborative and unhelpful. This is the type of discussion among the professional team (not in front of the clients) that ought to be encouraged to promote learning and understanding.
While it is important to recognize that a CDFA shouldn’t opine on matters of law, once one has worked on a significant number of cases (in my case over 75) it is difficult not to acquire some understanding of both the relevant sections of the law and how those sections may or may not be applied by family law judges or magistrates. That can make for delicate conversations with attorneys.
I preface almost everything I say that extends beyond any financial analysis with the statement “I don’t practice law”. Then I will state what I see or feel needs to be brought to an attorneys attention- I usually ask the attorney to help educate me or tell me what I may be missing or overlooking…
When working as the financial neutral in a collaborative divorce I think any member of the team should be able to ask almost any question that may arise as we all are striving towards the same outcome for the couple– an equitable asset division and support considerations that make sense given the facts of the case.
In this case, I bet the lawyer was embarassed to have his or her mistake pointed out and gave the lawyering retort to cover their embarrasment.
Another way to handle this in the future may be to use a list of required documents at the beginning of an engagement and include anything that the CDFA feels is pertinent.
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