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?