From the desk of My Collaborative Team President, Edward S. Sachs, CPA
In the Collaborative Process, does the law matter? Do we, or should we, not discuss the law with our clients? Many litigation attorneys believe that in the Collaborative Process we ignore the law.
Good faith negotiations require that each client and professional takes a thoughtful and constructive approach to all unresolved questions in the interest of reaching agreements. Further, no client or professional may take advantage of inconsistencies, misunderstandings, miscalculations, omissions, or inaccurate assertions of fact, law, or expert opinion.
Thus, our own Collaborative Standards require that we consider the law.
This past weekend at the Florida Academy of Collaborative Professionals annual conference this very topic was brought forward by a group of seasoned Collaborative Professionals including one of Palm Beach County’s top litigators.
After demonstration of how two different attorneys handle this issue with their Collaborative clients it was evident that the law is a critical component of the Process and of good faith negotiations. The difference was how and when it was presented to the client. One of the attorneys made the discussion of the law a part of the initial consultation, the other didn’t.
How do you present the law to your clients? We would like to hear from you on this subject. Send us your thoughts or join us this Friday at 4:30 p.m. Eastern for our Happy Hour discussion.
In the Cleveland Academy of Collaborative Professionals, our protocol is to educate the client, in the initial consultation, that the shadow of the law discussion is best held in a process meeting after all facts have been shared. During that process meeting (typically woven into the brainstorming step and normalized as just an option), both lawyers (after the lawyers first pre-meet of course to plan choreography) discuss the shadow of the law with both clients together and both clients can ask questions in real time.
I am in Whitby, Ontario. After we have gathered and exchanged financial disclosure (in various forms depending on lawyers and clients), as lawyers we always show the clients the legal model (or two if counsel have differing views of the law) under our governing property statute. Then we start generating options with clients based on their goals and interests, etc. We are mindful of early cases that set aside collaborative separation agreements due to lack of full disclosure (but we were collaborative) so lessons learned that we need our collaborative clients to be fully aware of what they might receive under the law and hence be aware/know what they might be giving up.