Edited by - TexasBarCLE“Debunking Myths,” Collaborative Law Spring Retreat, Collaborative Law Institute of Texas & University of Texas School of Law, February 2006. ... “The

COLLABORATIVE LAW CHALLENGES AND ETHICS

Edited by

JANICE GREEN

2007 Contributors:

JOHN ANDERSON JENNIFER BROUSSARD

KATE CULLIGAN JANICE GREEN

State Bar of Texas 33RD ANNUAL ADVANCED

FAMILY LAW COURSE August 6-9, 2007

San Antonio

CHAPTER 56.2

CURRICULUM VITAE FOR JOHN P. ANDERSON John P. Anderson Certified Public Accountant, License No. 16127 1100 Guadalupe Austin, Texas 78701 (512) 476-4873 PERSONAL: Born September 1, 1938 in Austin, Texas Married with two children EDUCATION: BBA Degree from The University of Texas in 1960 with a Major in Accounting LICENSE FOR PUBLIC ACCOUNTING: Licensed as Certified Public Accountant by the Texas State Board of Public Accounting in August 1976 PROFESSIONAL EXPERIENCE: July 1985 to Present: self-employed in the litigation support field 1974 to July 1985: employed by Roberta P. Crenshaw as Financial Manager 1961 - 1974: employed by Gulf Oil in Marketing Department EXPERT WITNESS QUALIFICATIONS: Have given testimony in both District and Federal Court. Subjects included are: * Business valuation * Tracing of separate/community property * Income tax matters * Professional practice valuation * Forensic accounting issues * Damages

JENNIFER BROUSSARD

Legal Education: South Texas College of Law, 1984 Law school affiliations: Delta Theta Phi Fraternity,Clerk of the Exchequer 1982-83, 1983-84 Texas College of Trial Advocacy, Assistant Office

Director, 1982 Undergraduate Education: University of Colorado, 1978, B.A. Urban Studies, "With Distinction"

Undergraduate publications: Internship publication: Survival and the Law for the Colorado Woman: A

Handbook of Legal Rights and Responsibilities Course publication: "Conjugal Visitation in Prison" distributed through

CONtact Center, Lincoln, Nebraska Undergraduate affiliations:

National Organization for Women various offices, legislative committees,

speakers' bureau, speaker before the Colorado House of Representatives and Senate Sunset Committees on the issue relating to the sun-setting of the Colorado Commission on Women.

Financial advisor to the Denver Coalition on Sexual Assault, a federally funded educational agency.

Other Educational Institutions Attended:

Incarnate Word College, San Antonio, Texas, '64-65 and '66, degree plan - nursing Sacred Heart Dominican College, Houston, Texas, 1965, degree plan - nursing

Law Practice: Licensed May, 1985

November, 1984 through July, 1989 employed by the Law Offices of Burta Rhoads Raborn; Associate. Practice limited to the area of family law.

August, 1989 through present, self-employed. Law Offices of Jennifer A. Broussard, P.C. Practice limited to the area of family law.

Professional affiliations: Association of Women Attorneys, Board of Directors

1988-89 and 1990-91, Treasurer 1996-97, continuing member

Houston Bar Association, Family Law Section, Board of

Directors 1990-91, continuing member South Texas College of Law Alumni Association,

Partners for Progress. State Bar of Texas, Committee on Minimum Continuing

Legal Education, 1991-92

State Bar of Texas, District 4A Grievance Committee, 1990 to 1996. Chairperson of District 4A Grievance Committee, 1993, 1994 and 1995, 1996.

Texas Women Lawyers, Steering Committee, 1995, 1996 State Bar of Texas, Mentorship Committee, 1996-1997 Houston Bar Association, Professionalism Committee,

1996-1997 Houston Bas Association, Speakers Bureau, 1996-1997 Alliance of Collaborative Family Law Attorneys, Founder and

Steering Committee Member 2001; Secretary, 2001-2002-2003. Ex-Officio 2004. Gulf Coast Collaborative Lawyers Network, Executive Committee , 2002-2004 Treasurer; 2003; 2004.

Collaborative Law Institute Board of Trustees, 2002, 2003, 2004,

2005, 2006, 2007 Speaking Engagements: North Harris County Bar Association, "A Saturday Seminar", Family

Law: Preparing for New Laws, New Rules and New Methods of Practice, "Mediation From a Litigator's Perspective", October 28, 1995.

Guest Speaker on pilot radio program for syndication entitled

"Life Quest" hosted by Charmayne Moody, Esq. on the subject of family law.

State Bar of Texas, Law Office Management Program, symposium for

young practitioners on how to build a practice, November 12, 1996, Austin, Texas.

Panel Moderator: “Judges Panel: Ad Litem Issues in Family Court”,

Guardianship Issues In Probate and Family Law Courts, February 27, 1998. Speakers: Judge James D. Squire, 312th District Court, Judge Linda Motheral, 257th District Court and Judge John D. Montgomery, 309th District Court.

Houston Bar Association Speakers Bureau Engagement: Congregation

of the Sisters of Charity of the Incarnate Word, Monthly Staff Women’s Meeting, December 2, 1998 and January 20, 1999. “Defining Family, Probate and Juvenile Law”.

Executive Forum: Luncheon Speaker, “Understanding the

Judiciary”, April, 2000. Executive Forum: Luncheon Speaker, “New Developments in Family

Law - Collaborative Law”, September, 2001. American Women’s Society of Certified Public Accountants:

Luncheon Speaker: “Divorce and the CPA”, April, 2002; Annual Seminar: Keynote Speaker, “Divorce and the CPA - Collaborative Law”, February 1, 2003.

Civic Affiliations: West Lane Place Civic Association, Chairperson of By Laws Committee, 1991-92.

Mid Lane Square Townhouse Association, Board of Directors, 1990

Habitat for Humanity, Public Relations Committee, 1994

Executive Forum, Secretary, 2000-2001 and 2001-2002; Secretary and Membership Director 2002-2003; Delegate to Federation of Houston Professional Women, 2002, 2003; President, 2004; Historian, 2000-2006, Treasurer 2005, 2006, 2007.

Public Honors:

Federation of Houston Professional Women, 2002 Woman of Excellence; nominee of Executive Forum.

Other Employment Experience:

Chevron Services Co., Houston, Texas, 1979-83, Engineering Technician working in Reservoir Management and Computer Simulation with regard to the management and operation of the Saudi Arabian fields.

Chevron USA, Inc., 1970-79, Denver, Colorado, Engineering Technician working in Drilling and Reservoir Management with regard to the drilling, operation and management of the Rocky Mountain Region.

Other employment: secretarial positions, office nurse, insurance adjuster.

KATE CULLIGAN Mental Health Professional

4131 Spicewood Springs Road M-2 Austin, Texas 78759

Telephone: 512-275-3606 Fax: 512-342-2931

Email: [email protected] Licenses:

Texas Licensed Marriage and Family Therapist (2005 to present). California Licensed Marriage and Family Therapist (1992 to present).

Collaborative Training:

Basic Interdisciplinary Training, Collaborative Training Team, LLC, Alexandria, Louisiana, March, 2005. IACP Collaborative Conference/Training, Summer, 2005. Collaborative Law Institute of Texas Spring Retreats, 2006 & 2007. Intermediate Collaborative Family Law Interdisciplinary Training, Collaborative Law Institute of Texas, June 2006.

Professional Activities:

Owner, Collaborative Consulting L.L.P., a private consulting company. Participated in 60+ Collaborative Family Law cases on Interdisciplinary teams (2005 to present). Member, Collaborative Law Institute of Texas. Board Member, Austin Group Psychotherapy Society. Member, Austin Association for Marriage and Family Therapists. Participant, Professionals for Family Collaborative Law.

Previous Professional Activities:

Member, California Association of Marriage and Family Therapists. (1992-2001). President, Counseling Connections, a Professional Referral Service (1996-1998). Solo Private Practice In San Francisco, California (1992 to 2001), Experienced in family dynamics, coaching and managing groups.

Education: M.A. in Clinical Psychology, 1989, Antioch University, San Francisco, Calif. B.S. in Public Health, 1972, Indiana University, Indianapolis, Indiana.

Author and Lecturer:

“Getting Comfortable with Discomfort,” co-authored an article and served on a panel about challenging issues in Collaborative Law cases. Collaborative Law Institute of Texas & University of Texas School of Law, February 2006. “Managing Affairs in Collaborative Family Law Cases”, “Group Dynamics of Collaborative Teams,” and “Communication Skills for Divorcing Parties to Enhance Negotiating Settlement Agreement.” Professionals for Collaborative Family Law, Austin, Texas (2005 to 2007).

JANICE L. GREEN

Attorney at Law 6407 Sumac Drive

Austin, Texas 78731 Telephone: (512) 241-1011

Fax: (512) 241-1814 Email: [email protected]

Licenses, Certifications: Board Certified, Family Law, Texas Board of Legal Specialization, State Bar of Texas (1985 to present). Licensed by State Bar of Texas (May 1976). Admitted to practice before the U.S. Supreme Court (1988), Fifth Circuit Court of Appeals (1982), Eastern and Western Federal Districts of Texas Federal Courts (1982). Professional Activities: Partner, Farris & Green, Austin, Texas. (1984-present) [AV rated]. Fellow, American Academy of Matrimonial Lawyers. Fellow, Texas Bar Foundation. Member, Texas Academy of Family Law Specialists. Member, Family Law Section, State Bar of Texas. Member, Family Law Foundation of Texas. Member, Travis County Bar Association and Family Law Section. Member, American Bar Association and Family Law Section. Member, Travis County Family Law Advocates. Mentor, University of Texas School of Law. Mentor, Travis County Bar Association. 2003-7 Texas Monthly Super Lawyer. Member, Collaborative Law Institute of Texas. Member, International Academy of Collaborative Professionals. Previous Professional Activities: Appointed to Family Law Council, State Bar of Texas (1998-2003 term). President, Travis County Family Law Advocates (1998-1999). Vice-Chair, Travis County Bar Association, Family Law Section, (1988-1989). Member, Board of Directors, Travis County Bar Association, Family Law Section (1985-1986). Member, Travis County Women Lawyers Association (1988-1994). Member, Board of Directors, Advocacy, Inc. (1985-1991); Chairperson of Board of Directors (1988-1990); Secretary (1990-1991). Associate with Coffee, Goldston & Vogt law firm; Austin, Texas (1982-1984). Solo Law Practice; Austin, Texas (1980-1982). General Counsel, Dallas County Mental Health Mental Retardation Center; Dallas, Texas (1978-1980). Staff Attorney, Texas Department of Mental Health and Mental Retardation; Austin, Texas (1976-1978). Education J.D. with Honors, 1975, University of Texas School of Law, Austin, Texas. B.A. with High Honors, 1971, University of Texas, Austin, Texas. Attended Syracuse University, 1966-1967. Honors: Phi Beta Kappa Psi Chi Honorary Psychology Fraternity; Phi Delta Phi Honorary Law Fraternity Author and Lecturer (non-duplicative CLE topics):

“Lurking in the Shadows: Collateral People & Information,” Collaborative Law Spring Retreat, Collaborative Law Institute of Texas & University of Texas School of Law, March 2007.

“Litigating the Collaborative Case Gone Bad,” Ultimate Trial Notebook: Family Law Course, State Bar of Texas, New Orleans, December 2006

“Snafus & Sticky Wickets in Collaborative Law: Problems & Ethics,” panel member and co-author, Advanced Family Law Course, State Bar of Texas, August 2006.

“Debunking Myths,” Collaborative Law Spring Retreat, Collaborative Law Institute of Texas & University of Texas School of Law, February 2006.

“Representing the ‘Older’ and Disabled Client,” Panel Member, and Author, “Issue Spotting for the ‘Older’ Client,” Marriage Dissolution Institute, State Bar of Texas, April 2005 & April 2006.

“Pre-Trial and Scheduling Orders” (lecture), Ultimate Trial Notebook–Family Law Course, State Bar of Texas, December 2004

“Cases Every Lawyer Should Know by Heart” (lecture); Williamson County Family Law Seminar, October 2004

“Child Support,” 20th Annual Conference of Texas Association of Domestic Relations Offices, October 2004

“Child Support: Maximizing Your Chances of Hitting a Home Run,” Advanced Family Law Course, State Bar of Texas, August 2004.

“Developing and Using a Theme in Your Family Law Cases,” Advanced Family Law Drafting and Advocacy Course, State Bar of Texas, December 2003.

“Characterization and Tracing,” Workshop Moderator, Advanced Family Law Course, State Bar of Texas, August 2003. “Dividing Intellectual Property,” Advanced Family Law Course, State Bar of Texas, August 2003. “Interrogatories to Family Lawyers–or–Questions We Do Not Want to Ask Ourselves,” Advanced Family Law Course, State Bar of Texas, August 2002.

“Getting the Biggest Piece of the Community Pie,” Pro Bono Family Law/Domestic Violence Seminar,” Family Law Section, State Bar of Texas, 2002. [Lecture only]

“Strategies for Obtaining Support Outside the Guidelines,” Advanced Family Law Course, State Bar of Texas, 2001.

“Disqualification and Recusal,” Advanced Family Course, State Bar of Texas, 1999 [Co-Author: Judge Lisa Mallard]

“Unusual Evidence Issues,” Marriage Dissolution Course, State Bar of Texas, 1999. “Coexistence or Collision: Marital Property and Ethics,” Texas Marital Property Institute, University of Texas, 1998. “Cases Update,” Title IV Masters Conference, Austin, Texas 1998. “Addressing the Child's Preferences on Conservatorship and Visitation,” Advanced Family Law Course, State Bar of Texas, 1998. [Co-presenter: Judge Lora Livingston] “Client Interviews” Panel, Advanced Family Law Art & Advocacy, State Bar of Texas, 1997. “Hidden, Disguised or Deceptively Valued Assets and Liabilities,” Advanced Family Law Course, State Bar of Texas, 1996. [Co-author and co-presenter: James E. Farris] “Tracking Production and Making Use of Documents Produced,” Advanced Family LawCourse, State Bar of Texas, 1995. Gender Bias Panel, “Dealing with Witches and Sons of Witches: Gender Issues in Everyday Practice of Family Law,” Marriage Dissolution Course, State Bar of Texas, 1995. “Temporary Orders,” Williamson County Bench-Bar Conference, 1994. “Drafting Special and Unique Clauses in Family Law Documents,” Advanced Family Law Course, State Bar of Texas, 1992.

“The Basic Principles of Characterization of Marital Assets and Their Impact on Characterization of Personal Injury Damages,” Trial Tactics Seminar, State Bar of Texas, 1991.

“U.S. Civil Service Retirement,” Retirement Benefits and Divorce Seminar, Family Law Section of Travis County Bar Association, October, 1990. “Recent State and Federal Legislation Respecting Continuation of Group Health Insurance Coverage for Divorcing Nonemployee Spouses,” Texas State Bar Family Law Section Report, Vol. 86-4, Winter, 1986-1987.

“Rights of Mentally Retarded Persons,” Houston Lawyer, August, 1981. Planning Committees, Continuing Education Programs 2007 Advanced Family Law Course, State Bar of Texas 2007 Collaborative Law Retreat, CLI-TX, University of Texas Law School 2006 Ultimate Trial Notebook, State Bar of Texas 2006 New Frontier in Marital Property Law, State Bar of Texas 2006 Marriage Dissolution Course, State Bar of Texas 2006 Advanced Family Law Course, State Bar of Texas 2005 Advanced Drafting Course, State Bar of Texas 2005 Marriage Dissolution Course, State Bar of Texas 2004 Ultimate Trial Notebook Course, State Bar of Texas 2003 Advanced Family Law Advocacy & Drafting Course, State Bar of Texas 2003 Advanced Family Law Course, State Bar of Texas 2001 Advanced Family Law Course, State Bar of Texas

1999 Marriage Dissolution Course, State Bar of Texas 1998 Marriage Dissolution Course, State Bar of Texas 1997 Advanced Family Law Art and Advocacy Course, State Bar of Texas Non-Law Related Activities Volunteer with Global Volunteers (India, West Virginia) Board Member, Helen Graham Park Foundation Stained Glass Designer/Craftsman Member, Austin Bonsai Society Chair of Board of Trustees, Austin ProChorus, Inc. (2000-2001); Director, Board of Trustees (1998-2002)

Collaborative Law Challenges & Ethics Chapter 56.2

i

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. DISCLOSURE OF RELEVANT INFORMATION ............................................................................................... 1 A. Infidelity #1 ..................................................................................................................................................... 1 B. Infidelity #2 ..................................................................................................................................................... 2 C. Infidelity #3 ..................................................................................................................................................... 4 D. Infidelity #4 ..................................................................................................................................................... 4 E. Infidelity #5 ..................................................................................................................................................... 5 F. Insider Information.......................................................................................................................................... 6

III. ENFORCING AGREEMENTS .............................................................................................................................. 7 A. Entering Judgments ......................................................................................................................................... 7 B. Filing Motions for Entry of Judgment............................................................................................................. 8

IV. TERMINATION OF COLLABORATIVE PROCESS .......................................................................................... 9 A. Consulting Litigation Counsel......................................................................................................................... 9 B. Notice of Termination ................................................................................................................................... 10 C. Avoiding Termination by One-Text Facilitation........................................................................................... 10 D. Termination Followed by a Pro Se................................................................................................................ 11 E. Urging Termination....................................................................................................................................... 12

V. MODIFYING THE COLLABORATIVE PROCESS AND PROCEDURES...................................................... 13 A. Screening Clients –Just Say No..................................................................................................................... 13 B. CL Premarital Agreements ............................................................................................................................ 14 C. Skipping Over the CL Roadmap ................................................................................................................... 14

VI. THE COLLABORATIVE TEAM MODEL ......................................................................................................... 15 A. Role of Financial Professional #1................................................................................................................. 15 B. Role of Financial Professional #2.................................................................................................................. 15 C. Role of Financial Professional #3.................................................................................................................. 16 D. Role of Mental Health Professional .............................................................................................................. 18 E. Communications among Team Members...................................................................................................... 19 F. Inexperienced CL Attorney ........................................................................................................................... 19 G. Role of Mental Health Professional in a High Conflict Case........................................................................ 20 H. Early Involvement of FP and MHP............................................................................................................... 21 I. Role Confusion: Detaching Team Members ................................................................................................ 21 J. Untrained FP #1............................................................................................................................................ 22 K. Untrained FP #2............................................................................................................................................. 22 L. Expanding the Team: Neutral Child Specialist: ........................................................................................... 22 M. Attorneys at Odds #1..................................................................................................................................... 23 N. Attorneys at Odds #2..................................................................................................................................... 23

VII. MANAGING CLIENT CHARACTERISTICS .................................................................................................... 23 A. Alcoholism .................................................................................................................................................... 23 B. Clients Moving at Different Speeds .............................................................................................................. 24 C. Client Boundary Issues.................................................................................................................................. 24 D. The Controlling Client................................................................................................................................... 25 E. The Oppositional Client ................................................................................................................................ 25 F. Older Clients #1............................................................................................................................................. 26 G. Older Clients #2............................................................................................................................................. 27

VIII. CONCLUSION .................................................................................................................................................... 27


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COLLABORATIVE LAW CHALLENGES AND ETHICS I. INTRODUCTION At the 2006 Advanced Family Law Course, a paper was presented and titled “Snafus and Sticky-Wickets in Collaborative Law: Problems and Ethics.” This is a revision and expansion of that paper. The response to “Snafus” was resounding. The case scenarios and potential solutions have been used by practice groups as discussion points in meetings and have served as ethical guidelines for individual practitioners. Thanks to the 2006 contributors to “Snafus”: Mike Gregory, Donald Royall, Linda Solomon, Scott Clarke, Kevin Fuller and Janice Green. The goal of the authors of this “revised edition” is to continue building an on-going, ready-reference resource for collaborative law attorneys who face problems and challenges. We do not pretend to have all the answers, or even the right answers. What we offer is a discussion by seasoned professionals. This article presents a series of case problems encountered by attorneys, neutral mental health professionals (MHP), and financial professionals (FP). The cases are presented in the form of facts, issues, and solutions. For many there are multiple solutions depending on the issues, people, and personalities in the room at the time. At times we will discuss how well the solution worked and how the problem would be resolved differently, if given another opportunity. In the preparation and updating of this paper, the panel members rediscovered the incredible usefulness of the Protocols of Practice for Collaborative Family Lawyers, the Protocols of Practice for Collaborative Mental Health Professionals, and the Protocols of Practice for Collaborative Financial Professionals. Tremendous gratitude is offered to the lawyers, MHP’s, and FP’s who wrote the protocols. The protocols are available to members and non-members of the Collaborative Law Institute of Texas at www.collablawtexas.com. Other documents referenced in this paper are the Collaborative Law Participation Agreement, Neutral Allied MHP Participation Agreement and Neutral Allied Financial Professional Participation Agreement and Collaborative Law Representation Agreement Addendum to an Attorney-Client Employment Contract. These documents and many other forms are available to CLI-TX members only at the CLI-TX web site cited above.

II. DISCLOSURE OF RELEVANT INFORMATION

A. Infidelity #1 Facts: Husband and Wife have been working collaboratively over several weeks. After diligent work, they have reached a settlement on all issues. Before the end of the meeting, Wife declares that she agrees to everything, but cannot sign the final papers until her Husband tells her whether or not he has been having an affair. The issue never came up in the collaboration, but Husband confessed to his attorney in private that he was having an affair with a woman he hoped to marry once the divorce was final. Husband says that he doesn’t think this is relevant (there are no minor children), and he refuses to answer. Wife insists that he tell her one way or the other. Issue: Husband’s attorney’s practice group have debated the issue and decided that it is not necessary to volunteer a confession of an affair. They have decided to interpret the Protocols of Practice for Collaborative Family Lawyers Section 5.02 requirement for honesty and full disclosure of relevant information to limit disclosure only to information that the group agrees is “relevant”, and they have agreed that adultery is not relevant in a collaborative law case unless the children have been exposed to the extramarital relationship. (The language for the Protocols of Practice for Collaborative Financial Professionals and the Collaborative Mental Health Professions each have a Section 5.02 with similar language. The CLI-TX model Collaborative Law Participation Agreement requires the parties to make full disclosure of “information as necessary to make a proper evaluation of the case.”) Solution: Explain Husband’s options to him: 1) he can continue to refuse to answer, in which case his Wife may terminate the collaborative process and hire a litigation attorney who can ask him the same question under oath, which he will then have to answer truthfully; or 2) he can lie, in which case you, his lawyer, will terminate the collaborative process on his behalf, his Wife’s litigation attorney can take his deposition and ask him the question under oath, which he will have to answer truthfully; or 3) he can tell the truth and run the risk that his Wife gets angry and terminates the collaborative process and hires a litigation attorney, etc. The choice is always the client’s. Would the solution be different if Husband had spent $3000 of community funds on girlfriend? Probably, due to the unquestionable relevance of the issue involving waste to the community estate.


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B. Infidelity #2 Facts: The parties bring out the champagne and toast their completed collaborative divorce agreement. A divorce is granted and an Agreed Decree of Divorce is signed by all, including the Judge. Six months pass. Husband makes an appointment with his divorce collaborative attorney. He is angry because he just discovered that his Wife was having an affair during their collaborative divorce process. Wife never revealed that she was having an affair when they were negotiating. Of course, Husband never asked her THAT question because all during the collaborative process, they were continuing to have a very satisfactory sexual relationship which Husband assumed was an exclusive relationship. This assumption put him in a good mood in negotiations because he harbored visions of reconciliation on the horizon….even reconciliation after a divorce was granted. Husband tells you that he would never have agreed to such a “generous” property division if he had known his Wife was double-timing him. He feels duped. He wants to know his options. Issue: Is failure to disclose an affair, on-going during the collaborative process, a material breach of the Collaborative Law Participation Agreement provision to make full disclosure of “information as is necessary to make a proper evaluation of the case”? Does the Wife have a duty to reveal this information? Does the Husband have a duty to inquire? Solution: In this case, the Husband cooled off and decided not to pursue his complaint. But what if he had not? His former collaborative attorney could refer him to an appellate practitioner for a review of restricted appeal and any other appellate review options that might apply, including discussion about intrinsic fraud vs. extrinsic fraud. The likely result is that the former client would be told that no appellate review is available for him. However, the Husband might have an action for breach of contract due to fraudulent inducement. Next, the former client starts to make noises that his collaborative attorney should have asked whether his Wife was having an affair, as a matter of course in thorough discovery (for which the former client was relying on his attorney to guide him). This is when the collaborative attorney contacts his/her professional liability insurance carrier. [Advising CL clients about their discovery options should be put in writing to avoid he-said/she-said scenarios in the future.] In summary, this attorney, now as a matter of course, has a long discussion with clients about the full disclosure provision in the standard Participation

Agreement. The discussion covers topics such as disclosure of past or current affairs, anticipated financial bonuses (e.g., stock options, restricted stock awards) that are being intentionally delayed until after the divorce, anticipated future inheritances or distributions from trusts being purposefully timed post-divorce, and other examples of relevant information someone might want to know in addition to current financial information. Unfortunately by raising such questions to one’s client, conflicts may be seeded between the parties that lead to bumps in their collaborative negotiations. With skillful guidance by both attorneys and MHP’s, such bumps will not derail the process. Please note: Section 5.02 of the Protocols of Practice for Collaborative Family Lawyers reads as follows:

SECTION 5.02. HONESTY AND FULL DISCLOSURE. The collaborative lawyer recognizes that honesty and full disclosure of relevant information is critical to the successful outcome of a collaborative matter and should assist the client in complying with the requirement of making a full and candid exchange of all relevant or requested documents and information to the appropriate participants. Comment A major paradigm shift for a lawyer handling a collaborative matter is the requirement for disclosure of documents and information. It is the antithesis of litigation practice but the cornerstone of the safe environment sought to be created by the collaborative law process. "Requested documents and information" requires minimal thought. If the documents and information are requested, they must be delivered or divulged. The parties may negotiate the manner and method of production. However, "relevant information" not specifically requested presents a substantial challenge to the lawyer and client, both of whom have made a commitment to the collaborative law process. In our "don’t-ask-don’t-tell" society, the disclosure of unrequested, but relevant information goes against the grain. The appropriate minimum standard for disclosure should be thus posited: "Putting the shoe on the other foot, would my client need, expect or desire such information in attempting to make an informed decision?" The definitions of


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“relevant” should guide the lawyer and client in disclosing the information: “having significant and demonstrable bearing on the matter at hand,” “affording evidence tending to prove or disprove the matter at issue or under discussion,” “having social relevance,” and “implying a traceable, significant, logical connection.” Phrased differently: Is the information appropriate for the occasion? Is the information so close to the matter at hand, that it cannot be ignored without a serious impact on the decision making process?

Texas Disciplinary Rules of Professional Conduct, Section 1.05 Confidentiality of Information reads as follows: (a) Confidential information includes both privileged

information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or

a former client to:

(i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.

(2) Use confidential information of a client to the

disadvantage of the client unless the client consents after consultations.

(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.

(c) A lawyer may reveal confidential information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation. (3) To the client, the clients representatives, or

the members, associates, and employees of the lawyers firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

(d) A lawyer also may reveal unprivileged client

information.

(1) When impliedly authorized to do so in order to carry out the representation.

(2) When the lawyer has reason to believe it is necessary to do so in order to:

(i) carry out the representation effectively; (ii) defend the lawyer or the lawyer’s

employees or associates against a claim of wrongful conduct;

(iii) respond to allegations in any proceeding concerning the lawyers representation of the client; or

(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the


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payment of the fee for services rendered to the client.

Section 1.03 from the Protocols of Practice for Collaborative Family Lawyers reads as follows: SECTION 1.03. APPLICATION OF PROFESSIONAL RULES. These protocols are subordinate to the rules of professional conduct governing the lawyer. Comment A member of the State Bar of Texas is subject to the Texas Disciplinary Rules of Professional Conduct. These protocols must be interpreted in a manner consistent with those rules. Section 2.03(c) of the Protocols of Practice for Collaborative Family Lawyers reads as follows: SECTION 2.03. FAITHFUL REPRESENTATION OF CLIENT.

(c) The collaborative lawyer should at all times be faithful in the representation of the client and zealously represent the client in pursuit of the client’s stated goals. This faithful representation includes informing the client about the law and its application to the client’s matter on an ongoing basis, preserving confidential communications, and assisting the client to develop approaches, collaboratively with the other participants, to resolving the matter without judicial intervention. (emphasis added).

C. Infidelity #3 Facts: Middle aged couple married 12 years with two children is divorcing. Husband has had an affair and discloses this to his attorney. Wife has been looking at credit card receipts and certain items charged give potential evidence of the affair. There is significant community and separate property and Husband is grandiose, controls the finances, and travels extensively as a consultant to the oil and gas industry. This is a very traditional couple with defined roles. Wife attends to all aspects of their lives and Husband is absent much of the time with his work, activities and affair. Wife is suspicious and angry, and lacks knowledge about their finances. Husband just wants it over, wants to support the family, and move on with his new partner. Husband wants to collaborate

and at the same time dictate the terms of almost everything. He balks at sharing information and sometimes treats his own attorney as an administrative assistant. Issues: Issues are handling Husband’s personality, determining whether to disclose affair and verify Wife’s suspicions, and to insist on full transparency involving their estate. Husband’s attorney suspects new partner is a significant shadow advisor. Wife’s attorney is focusing on coping with a very angry client, trying to verify if extensive community funds are being used to support Husband’s new partner, and concerned with the Wife’s ability to manage her finances going forward. Solutions: Disclosing affairs is always a challenge and done on a case-by-case basis. If the attorney is seasoned and tactful, it may be helpful to discuss other cases as examples to let Husband know that if Wife suspects an affair, it will be an ongoing obstacle to moving forward with the case. If he wants the process to move along quickly, disclosing the affair, detailing the money spent, and getting the issue out in the open may meet his primary goal of divorcing quickly. By the time Husband talks with his attorney and then understands from the FP what information will need to be gathered for full disclosure, Husband may get a better picture of what collaborative involves. Wife and Husband may need the entire team’s support to cope with this issue, but it is ubiquitous and is dealt with often. The fact that Wife may seek any financial information she chooses with the assistance of the neutral FP will give her some modicum of confidence regarding their finances. The MHP can step in and help the couple cope with this issue and the fall-out that will certainly happen. The FP can certainly offer Wife budgeting help to allay her fears. D. Infidelity #4 Facts: Husband and Wife have retained collaborative-trained attorneys, have signed a Participation Agreement (modeled on the CLI-Texas format), and have a team of a FP and a MHP on board. Wife suspects that Husband has been having an affair. She is angry and insists on Husband admitting to his alleged affair (about which he was unaware). The team tries to dodge this issue in joint sessions, but Wife is insistent on confronting the Husband. Eventually she does in a post-meeting conversation with Husband. It turns out that Husband is having an affair with his boss’s spouse. Wife is furious and in a fit of passion (and a margarita or two) places an evening phone call to Husband’s boss and promptly informs him of the affair. The next day Husband is called into his Boss’s


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office and confronted with the situation. Husband is told that his job is in jeopardy. Wife’s attorney is contacted by Husband’s CL attorney. Husband is furious and the entire CL process is about to be derailed. It is reported that Husband is going to terminate the CL process and sue Wife for her breach of confidentiality. Issue: Does Wife owe a duty of confidentiality to Husband? Solution: When Wife is confronted by her own attorney, she believes that she did not breach the PA because she learned of the affair in a non-meeting conversation with Husband. The pertinent PA provision is: “....the Clients agree to maintain the confidentiality of all oral and written communications relating to the subject matter of the case made by the Clients or the Collaborative Team, whether before or after the institution of formal judicial proceedings. The Clients agree that all oral communication and written material in the Collaborative Law Process will only be admissible or discoverable if it is admissible or discoverable independent of the Collaborative Law Process.” When Wife is reminded of that provision, she is irate with her own CL attorney because she claims that provision was never explained to her and that she had no idea that she could be “punished” for repeating information outside of the collaborative participants. The duty upon CL clients to maintain confidentiality of oral and written communications is rarely underscored for them when the PA is discussed, usually at the first CL joint session. Whether the communication in this scenario relates to the “subject matter of the case” is questionable, but this author believes that such information (and subsequent communication to the Boss) is protected and prohibited by CL confidentiality as specifically addressed in Section 154.0073, CPRC. The issue in this scenario is not whether the affair could be discovered independent of the CL process. It may well have been discovered via interrogatives promulgated in litigation. Another issue is whether this disclosure by the Wife is a breach of the PA contract. The contractual provision does not distinguish communications made within joint sessions or post-meeting communications (continued negotiations?) outside of the joint CL sessions. If the Husband were to lose his job, then he certainly has a potential measurement of damages he has suffered due to Wife’s breach. None of the CL participants has control over what the Boss will do. The best way to approach this situation is damage control with the aid of the MHP in calming the waters. If the Husband loses his job, then that certainly has consequences for the Wife in both the property division and child support arenas. Escalating

this case by a breach of contract cause of action may be inevitable. The Husband may choose to consult with a litigation attorney to explore how seriously the judge in their district may respond to such an issue. If the parties continue with their CL process, but if the relationship between the Wife and her attorney has disintegrated due to Wife’s allegations that her attorney should have warned her of the PA confidentiality provision, then Wife’s attorney should consider withdrawal and substitution of another CL attorney. E. Infidelity #5 Facts: Husband and Wife, both approximately 60 years of age, entered into the collaborative process with a full interdisciplinary team. They have been married since 1970. Husband was an airline pilot, living in Austin, but flying out of Houston and, at one time, out of Newark, New Jersey. In the late 80’s and early 90’s, Husband convinced Wife he needed to have an apartment in Houston to ease time constraints on flights to and from Houston. Wife suspected Husband was having an affair in early 2002, and he subsequently confessed. However, they reconciled and the couple continued to live together and Husband retired from flying in 2006. At that time, Wife, thinking the affair had not ended, talked with an attorney who recommended the collaborative process. Eventually, Husband engaged an attorney familiar with the collaborative process, and a petition was filed. Husband and Wife continued to live together for several months until he moved out and went to Houston. Wife, prior to his departure had, unbeknownst to Husband, copied everything in his flight bag including check registers and paid invoices dating back to the early 1990’s. Wife said nothing to her attorney at first about the documents copied. During a joint session, Wife wanted to know about a transaction involving the purchase of a 1986 Mustang automobile and other expenditures on a woman whom she suspected being her Husband’s paramour. Husband responded with an indignant letter explaining the woman was a friend of a friend from whom he had acquired the Mustang. Wife then told her attorney of the richness of the cache of documents she had copied from his flight bag, including conclusive evidence, not only of the acquisition of the Mustang from the paramour, but also evidence of a relationship that had been going on since the early 1990’s. Wife’s attorney told Husband’s attorney that the Wife had given him documents to provide to the FP concerning an improper relationship and that the FP would be investigating and would provide a report to all parties. Husband, prior to talking with the FP, demanded that the divorce be completed because of the ongoing expense. Wife’s attorney then told Husband’s attorney that Wife would accept $150,000, which she estimated


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had been spent on his paramour, plus one-half of the community estate. Husband, again indignant, then asked for the documents that would substantiate the demand for $150,000 allegedly spent on his paramour. He was told that they were all in his flight bag. Husband contacted the FP and wants to review the supporting documents for the demand of $150,000 in waste. Husband contends that although some funds were no doubt spent on paramours, he had legitimate living expenses in Houston and for travel expenses. Issues: At what point in the collaborative process should damaging evidence be disclosed to the team? To the parties? Is Wife obligated under the collaborative process to reveal her calculations of monies she alleges was spent on paramour? Solution: Wife had played the amount of damaging evidence she had close to the vest. She eventually told her attorney and the attorney immediately got the FP involved. The attorney and FP, after meeting with Wife, placed a call to Husband’s attorney to tell her what documents Wife had. Before the FP reviewed the documents provided by Wife, the offer demanding $150,000 was made to Husband’s attorney. FP has asked Husband to supply him with documentation of necessary monthly expenses while in Houston and for travel. One solution might be to determine the amount of money deposited by Husband in Houston accounts (which were not known by Wife), analyze the documents supplied to FP by Husband to determine reasonable expenses, and to arrive at an amount which would approximate monies expended on paramour. F. Insider Information Facts: Husband is a CFO of a publicly traded company and owns 2 million shares of the company's stock. Husband has signed a Collaborative Law Participation Agreement. Senior management of the company during the collaborative law process makes plans to take the company private and insists on complete and total confidentiality until the plan is formally announced to the stockholders. The company demands complete silence about this issue from Husband. Husband tells his collaborative lawyer about his dilemma. What should they do next? Issue: Do Husband and his lawyer have a duty to inform Wife and her lawyer about the plans to take the company private? Solution: Yes, based on the assumption that the company going private will either increase or decrease the value of Husband’s ownership interest in the company. Would this answer be any different if there

was an assurance that the value of Husband’s ownership interest would remain the same? There would still be a duty to inform. There is no way to know that the value would be the same. Even if the value would remain the same, the marketability of the ownership of a publicly traded company is far different from a privately traded company. The ownership of stock in a privately traded company is much more restrictive. Please reread section 5.02, Honesty and Full Disclosure of the CLI-TX Protocols of Practice for the Collaborative Family Lawyers. Also note the following language contained in the CLI-TX Collaborative Law Participation Agreement under the heading “Full Disclosure”:

“We agree to make such full and candid exchange of information as is necessary to make a proper evaluation of the case, including, but not limited to, full disclosure of the nature, extent, value of – and all developments affecting – the parties’ [income,] assets and liabilities[,and all relevant matters concerning the parties’ child[ren]]. Any material change in information previously provided must be promptly updated. The parties authorize their respective lawyers to fully disclose all information which in the lawyer’s judgment must be provided to other participants in order to fulfill this commitment. No formal discovery procedures will be used unless specifically agreed to in advance. However, the parties may be required to sign a sworn statement making full and fair disclosure of their [income,] assets and debts (a sworn inventory and appraisement). Affidavits may be utilized to confirm specific matters, such as the unavailability of certain information, or the existence or non-existence of documents or tangible things.”

In order to protect Husband’s position with his company, the parties and attorneys, as well as appropriate allied neutrals, could all be required to sign a confidentiality agreement protecting the insider information. Further, the CLI-TX Participation Agreement states the following under the heading “Confidentiality”: “The parties agree to maintain the confidentiality of any oral or written communications relating to the subject matter of the dispute made by the parties or their lawyers or other participants in the collaborative law process, whether before or after the institution of formal judicial proceedings.” There should be a discussion with team members and parties about the serious application of this provision and potential consequences should it be breached.


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If Husband told Husband’s lawyer that he was not going to disclose information and that Husband’s lawyer was strictly prohibited from disclosing the information of the company going private, what does Husband’s lawyer do? Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct states that a lawyer shall not knowingly reveal confidential information of a client or former client to a person that the client has instructed is not to receive the information. Rule 1.05(b)(1)(i) Tex. Disciplinary R. of Prof. Conduct. This Rule trumps the Husband’s attorney from revealing the confidential information. If Husband’s lawyer feels compelled not to disclose the information per Husband’s specific instructions but believes this information is the type falling within the CL disclosure requirements, then the CLI-TX Participation Agreement, section titled “Termination by Collaborative Lawyer” becomes relevant. This section requires the attorney to terminate the CL process (not just withdraw) under these circumstances. III. ENFORCING AGREEMENTS A. Entering Judgments Facts: The parties sign a Collaborative Law Settlement Agreement in which they clearly set out all of the details of their settlement. Wife’s attorney drafts all of the necessary documents and sends them to Husband’s attorney. Weeks go by with no word from Husband’s attorney about changes that need to be made or a date for entering the decree. Finally, Husband’s attorney calls and informs Wife’s attorney that he is very sorry, but his client has decided he does not want to pay her as much alimony as he had agreed to – that the alimony was really an equalizing payment for her share of the community estate, and he has since learned that the valuable property that they had agreed would be awarded to him is actually a toxic materials dump site and is worth much less than the agreed upon appraisal they had obtained. Issue: Can Wife’s attorney file a motion to enter a decree based on the Collaborative Law Settlement Agreement? Solution A: Unless Wife agrees to go back to the collaborative law table to discuss the alimony package, Wife’s attorney will have to terminate the collaborative law process and send Wife to a litigation attorney to move for entry of a decree based on the Collaborative Law Settlement Agreement. The hearing in a Motion for Entry in this case will likely be a contested hearing. Solution B: The Collaborative Law Settlement Agreement can be submitted to the Court for entry as a

decree. Texas Family Law Section 6.603(b) and Section 153.0072(b) both read as follows:

(b) Collaborative Law is a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement. (Emphasis added.)

Additionally, Texas Family Code Section 6.603(d) and Section 153.0072(d) each state:

(d) Notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule or law, a party is entitled to judgment on a collaborative law settlement agreement if the agreement: (1) provides, in a prominently displayed

statement that is boldfaced, capitalized, or underlined, that the agreement is not subject to revocation; and

(2) is signed by each party to the agreement and the attorney of each party.

Further, subsection (f) of both of these statutes states: “The parties shall notify the court if the collaborative law procedures result in a settlement.” Based on these statutes and assuming subsection (d) has been complied with fully, isn’t the court required to enter judgment on the settlement agreement? It would appear that the same case law utilized in mediation procedures in Texas Family Code sections 6.602 and 153.0071 applies; it states that a mediated settlement agreement is binding on the parties and means “you can’t take it back,” and that a judgment can be promptly entered based on a mediated settlement agreement despite the repudiation by one party. (Cayan v. Cayan, 38 S.W.3d 161 (Tex.App.-Houston[14th District] 2000, pet. den’d). The same reasoning applies to a settlement agreement reached through collaborative law. See Sec. 6.603 and Sec. 153.0072, Tex. Fam. Code. After the judgment is entered, then the Husband might consider filing a Motion for New Trial based

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=38&edition=S.W.3d&page=161&id=37049_01


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upon newly discovered evidence – i.e., the toxic waste site and its relevance to value. B. Filing Motions for Entry of Judgment Facts: Husband and Wife sign a standard CLI-TX Participation Agreement. After nine months of joint sessions without an agreement, the parties and attorneys try mediation and reach a mediated settlement agreement in a last-ditch effort to resolve their differences. In full compliance with Texas Family Code Section 6.602(b), the parties and attorneys sign the irrevocable mediated settlement. The mediated settlement agreement provides that the mediator will arbitrate certain issues. The mediated agreement is a detailed document with numerous initialed delineations – not the easiest document to decipher, but an agreement nevertheless. The Husband and his attorney prove up the divorce on the record. Judgment is rendered, and the judge makes a docket notation to that effect. Wife refuses to sign the final decree (with no specific complaints about language in the drafted Decree). Both attorneys have the Decree in a form that each believes accurately captures the parties’ agreement. Issue: The next step is filing a Motion for Entry of Judgment. Who and how is this to be accomplished? Must the Husband give notice of termination of the collaborative process, wait the thirty days, and go to the expense of hiring litigation counsel? Or, is this a “ministerial” act (Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex.App.—Waco, 1988, no writ), rather than a litigative act, allowing the Husband’s collaborative counsel to file and argue the Motion for Entry at a hearing? Solution A: The collaborative attorney cannot file a Motion for Entry of Judgment. 1. Many Motions for Entry proceed without

argument of counsel, and many times without a client showing up for the hearing. However, some hearings on Motions for Entry can be quite contested. Perhaps the following Participation Agreement provision settles this issue: “No motion or document will be prepared or filed which would initiate court intervention.” Does that provision preclude the collaborative attorney from filing a Motion for Entry due to the possibility that the hearing will be, through zealous legal representation required of all attorneys, a contest requiring court intervention?

2. One or both collaborative attorneys could withdraw. The Participation Agreement provides that the collaborative attorney must withdraw “if a

party proposes to take an action that would compromise the integrity of the process.” Doesn’t this refusal to sign without reason compromise the process, requiring withdrawal of collaborative counsel and hiring of litigation counsel on both sides?

3. Failure to sign the final agreement could be viewed as a material breach of the Participation Agreement contract thus terminating the collaborative process. This mandates the withdrawal and substitution of counsel.

4. In this case the mediated agreement provides that the mediator serves as a binding arbitrator on drafting disputes, issues regarding interpretation of the agreement, and issues regarding intent of the parties. Does failure to sign, for no stated reason, fall into any of those categories? If not, could the mediation language in future Participation Agreements address such a situation by allowing the arbitrator to approve the final form of the Decree should a party refuse to sign it?

Solution B. The collaborative attorney can file a Motion for Entry of Judgment. 1. The Participation Agreement provides, “No

hearing shall be set…, other than to enter agreed orders and judgments.” What could be clearer? A Motion for Entry of Final Judgment is the means to this end.

2. Another helpful provision in the Participation Agreement is this: “Any written agreement, whether partial or final, which is signed by both parties and their respective collaborative attorneys, may be filed with the court as a collaborative law settlement agreement in accordance with Texas Family Code § 6.603 and/or § 153.0072 and/or Rule 11, Texas Rules of Civil Procedure.” Does it make a difference that the parties are trying to enforce a mediated settlement agreement rather than a collaborative law agreement? Given that the parties reached a mediated settlement agreement, one could argue that Texas Civil Practice and Remedies Code section 154.071 authorizes the Court to enter an order based on the mediated settlement agreement. Section 154.071 reads as follows:

(a) If the parties reach a settlement and execute a

written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract.

(b) The court in its discretion may incorporate the terms of the agreement in the court’s final decree disposing of the case.




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(c) A settlement agreement does not affect an outstanding court order unless the terms of the agreement are incorporated into a subsequent decree.

Is not the signing of an enforceable Decree of

Divorce such “effectuation” of the parties’ agreement? And would a collaborative counsel’s Motion for Entry simply be the necessary act to lead to that “effectuation?”

3. A simple Decree of Divorce can be drafted which

incorporates all of the mediated agreement provisions which are attached to the Decree. Even though the mediated agreement in this case is not the easiest document to read, due to interdelineations, it will be the job of a future judge to interpret it should a party need to file a Motion for Clarification (obviously outside the province of collaborative law).

4. Section 6.603(c)(4) requires withdrawal of all counsel if the collaborative law procedure does not result in settlement of the dispute. Did not the clients reach an agreement, thus not triggering the statutory withdrawal requirement?

IV. TERMINATION OF COLLABORATIVE

PROCESS A. Consulting Litigation Counsel Facts: Husband and Wife enjoy a very comfortable lifestyle from distributions from Wife’s substantial trust estate. Husband files suit for divorce. The suit happens to fall in the 007th District Court, whose judge has a reputation for being extremely sensitive to the need to control her docket and keep her cases “moving”. Wife engages lawyer, who files a general denial. Thereafter, Husband and Wife hear about collaborative law, and decide to proceed on that basis. Each retains collaborative counsel, who “substitutes in” for their original lawyers. A Participation Agreement is signed, and collaboration commences. The Participation Agreement contains the following provision:

The Clients agree no Client shall consult a litigation lawyer so long as the Collaborative Law Process continues, except for the limited purpose of obtaining a private opinion as to the potential outcome of the case in an adversarial proceeding. The Client should give any lawyer offering an opinion on an issue(s) all information necessary to give informed advice, including reports of consultants whose services have

been engaged in the Collaborative Law Process. The Clients agree the work product and opinion of such privately engaged lawyer are attorney-client privileged and are not required to be disclosed in the Collaborative Law Process.

The issues are many, the financial picture is complex. If collaboration fails, proper preparation of Husband’s case in litigation would require extensive tracing into Wife’s trust funds, and lengthy discovery. After several meetings over a number of months, it appears that success in the process is unlikely. Husband consults his previous attorney for the limited purpose of obtaining a private opinion as to the potential outcome of the case in an adversarial proceeding, and reports to you that in view of this particular judge’s propensity to move her docket and the risk that she might insist on a trial in short order, if Husband decides to terminate the collaborative process, the litigation attorney recommends that Husband non-suit his petition immediately upon communicating the decision to terminate, then re-file same, thereby buying time for trial preparation and obtaining additional interim support as well. Husband instructs you to communicate his decision to terminate the process, and presents you with a substitution of counsel. He further instructs you that you are not to mention his intention to non-suit following termination to anyone. Issue: Do you have any responsibility to seek to protect the integrity of the process by maintaining the “status quo” created in the collaborative process during this transition period, despite the fact that doing so might inure to the detriment of your client in the subsequent litigation of the case? Is there any way you could do that without violating the attorney client privilege? Solution: When the issue is the integrity of the CL process vs. your duty to protect your client’s confidentiality privilege – the safer course is to opt for the latter. Please note the following language from the CLI-TX Participation Agreement Section entitled Termination by Party:

Termination by Party. A party who has decided to terminate the collaborative law process shall notify his or her lawyer in writing. That party’s lawyer shall then give prompt written notice to the other party through his or her lawyer and to the court. Upon notice of termination of the process to the other lawyer, there will be a 30-day waiting period (unless there is an emergency) before any court hearing to permit each party


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to engage another lawyer and make an orderly transition. All written agreements shall remain effective until modified by agreement or court order. Either party may bring this provision to the attention of the Court in requesting a postponement of a hearing. (Emphasis added.) If a party chooses to terminate the collaborative process by seeking court intervention for a judicially-imposed decision, both lawyers shall withdraw from the representation. Neither collaborative lawyer (including any lawyer associated in the practice of law with the collaborative lawyer) may serve as a litigation lawyer in this case or in any other matters between the parties thereafter. Each lawyer will cooperate in transferring the file to a new lawyer. (Emphasis added.)

Keep in mind that the Wife’s attorney only filed a general denial; and assuming there was no affirmative relief sought in that pleading, a unilateral nonsuit is always possible. It is wise to file a pleading seeking affirmative relief (or counterclaim) just to be safe should the collaborative process fail. This step would avoid a blind-sided dismissal as in this case scenario. Query: What if the Husband consulted with a friend of his – a friend who just so happens to be a litigation attorney. This may not be the litigator he will use once he leaves the CL process. Is there a duty to disclose his plans to engage in such “informal” consultation with a litigation attorney? The safe answer is yes, if the PA does not distinguish between litigators who are friends or who do not charge for their advice. To engage in such behind-the-scenes consultations thwarts the litigation opinion procedures in the model PA’s. B. Notice of Termination Facts: Husband and Wife retain collaborative attorneys, sign a standard Participation Agreement, and fail to reach a settlement. In desperation one day, Husband emails his Wife and both attorneys notice that he is terminating the collaborative process. The attorney representing Husband believes that this notice suffices. No notice is provided to the court. In thirty days, after the post-notice period has run, Wife tells Husband that they are still in the collaborative process, and he cannot go to court to litigate; further she tells Husband that if he has consulted with a litigation attorney without consulting with her, then he has breached the Participation Agreement.

Issue: Where this Participation Agreement describes the notice of termination, it states that the party must notify his/her attorney in writing. It also provides that the terminating party’s attorney is to send a notice of termination to the other lawyer and to the Court. Was Husband’s email notice a valid termination notice? And if not, what is the status of the collaborative process at that point? Solution: The terminating party’s attorney, by the terms of this Participation Agreement contract, should have prepared a separate notice of termination in writing and sent it to both the other attorney and to the court. The 30-day time limit would begin from the receipt of that second notice which follows the requirements in the Participation Agreement provisions. The issue underlying this problem is the “Why?” behind the standard CLI-TX Participation Agreement requiring notice to the court. Nothing in the Texas statute requires such notice. The CLI-Texas PA starts the 30-day waiting period from the date the other attorney is notified of termination. Court notification alone does not trigger it. Court notice could be delivered at a later time. Check local rules to see if those address timing issues when moving from CL to litigation. This is another situation that encourages us to “customize” form participation agreements. C. Avoiding Termination by One-Text Facilitation Facts: Husband and Wife engage collaborative lawyers, as well as a neutral FP and a neutral MHP to guide them through their divorce. The process works splendidly, a tentative property settlement is reached that addresses both parties’ goals and interests, and they are ready to part ways on the best of terms except for one small matter. They are the parents of two teenage boys and try as they might, they cannot reach a reconciliation of their deeply held but divergent views about what is truly in the best interests of these two young boys in the matter of primary residence. Each say they understand and accept that the other has only the children’s best interests at heart in the positions they are taking, but each simply thinks the other is wrong and that the issue is so critical to the children’s future that compromise of their respective positions amounts to compromise of their children’s future. Good faith is not in issue, they say, only faith that one solution must be wrong if the other is right. A neutral child specialist was brought in who concluded that either parent could be right or wrong, but that either choice would be acceptable, and okay with the boys. Neither parent could accept such a compromise for the reasons already stated. Before declaring an impasse, everyone agreed to mediation as a last resort before


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admitting failure. Two full days of mediation failed to resolve the conflict, despite the fact that all involved agreed that everyone worked diligently to find an acceptable solution. Issue: Where else is there to go? Impasse and the inevitable next step of a “custody trial” promise to undo all their hard work, and wreck its own special damage to the quality of the relationships everyone has been working so hard to preserve. Solution: The collaborative lawyers, having recently attended the Collaborative Law Institute of Texas Spring Retreat, had been exposed to an unfamiliar dispute resolution process known as One Text Facilitation, and urged the clients to try it. They engaged an experienced family law mediator who employed the following procedure: 1. Met with each client individually to discuss the

issues involved and to explore their respective interests and goals independent of the other parties’ interests and goals.

2. The facilitator then drafted a proposed agreement in complete detail and presented it to each of the parties, in separate sessions, as the facilitator’s proposal, undertaking to address as many of both parties’ interests and goals as possible. Each client was not asked to agree, but only to criticize the draft, and suggest how they would change it. It was made clear that nothing contained in the draft had been drafted by or agreed to by the other party, but was the work of the facilitator only.

3. Armed with the input from this first round of meetings, the facilitator revised the draft and repeated the process, again soliciting criticism not agreement. Once the parties accepted that the provisions they were critiquing came from the facilitator, and not “the other side”, they became less resistant to viewing suggested changes as possible improvements rather than compromises of their children’s futures.

4. The “redraft then critique” cycle continued until the facilitator could think of no further refinements that could be made to address constructive criticism to the draft, at which time it was presented to both clients and their respective collaborative lawyers as a simple “Yes or No” proposal, similar to a Mediator’s Proposal, with no further negotiation expected or invited. The responses were confidential, with the understanding that unless both said “Yes” the facilitation would simply end with no further discussion of the responses. To everyone’s amazement, BOTH SAID YES! The facilitator later revealed that the “tipping point” in the process occurred when each party came to

understand and accept that the merits of the proposals not only did not come from the other party, but in fact were not necessarily even agreeable to the other party.

D. Termination Followed by a Pro Se Facts: Husband and Wife each retained collaborative attorneys. A CLI-model Participation Agreement has been signed by all. A MHP is a team member. The case progresses after about four meetings. The parties are close to a final agreement, so the Husband fires his collaborative attorney because he believes he can wrap up the case without incurring the expenses for his legal counsel. The Wife’s attorney does not want to terminate the collaborative process. The MHP is not informed of the Husband’s decision to proceed pro se. Issue: Can an attorney who was involved in a terminated CL process proceed to conclude the case if the terminating party decides to go pro se? Solution: Under the CLI-Texas model Participation Agreement, the collaborative law process must terminate completely if a client chooses to represent himself. The remaining collaborative attorney must withdraw. Section 6.603, Tex. Fam. Code speaks in terms of each party being represented by an attorney. While the Family Code does not specifically address a pro se situation in the collaborative context, it is implicit throughout the Code’s collaborative provisions that there is no such thing as a pro se CL case. Sec. 6.603(4), Tex. Fam. Code. As an important member of the team, the MHP should have been contacted as soon as this problem arose. Perhaps her advice and counsel to the Husband could have prevented his decision to fire his attorney or could have led him to substitute another attorney if he truly wanted to proceed in the process of collaborative law. The Wife’s attorney may choose to prepare an amendment to the Participation Agreement if he elects to negotiate the final agreement with a pro se Husband. An Amendment can outline the positions in the case, the closeness of final agreement, and both parties’ stated willingness and consent to continue negotiating the case to finality. The only problem is that either a case is being handled within the litigation context or in the collaborative context. The cited Family Code provision clearly provides that if the collaborative process is terminated, then both parties’ attorneys must not be involved in litigation. Even though the vast majority of family law cases in the litigation process end up with an agreed settlement, once a case begins in the collaborative process it is either there or in the arena of litigation. There’s no halfway collaborative as


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there’s no halfway pregnancy – either you are, or you are not. The Husband will not have the confidentiality protection in his communications with the Wife’s attorney as are afforded those participating in collaborative law or in other alternative resolution procedures. He needs to be informed of that. [See Section 154.0073, CPRC.] What if the parties agree that they want to resolve the remaining issues in an informal settlement conference as described in Section 6.604 of the Texas Family Code? Is a collaborative attorney prohibited from participating in such a conference if one collaborative spouse has terminated the formal collaborative process by the act of firing his attorney? Perhaps. Note that in Section 6.603(b), the last sentence provides that “the parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.” If the remaining collaborative attorney’s role is merely to present the parties’ agreed settlement to the court (and not engage in any joint sessions with the pro se spouse), then there is an argument that the collaborative attorney could do so. However, notice the phrase “the settlement agreement” in Section 6.603(b). Does the “the” refer to THE agreement reached through the CL process which is described in 6.603(b), meaning that two attorneys were involved? E. Urging Termination Facts: Based upon the Wife’s obstinate behavior during a CL divorce, the Husband’s attorney warns her collaborative client about the probability of failure and the cost associated with such failure. Husband tries to stay in the collaborative process and make it work, but after much effort, impasse occurs and the case is resolved on the courthouse steps. The settlement is not as favorable to the Wife as her Husband’s proposals were in CL; yet much time and extra expense have been incurred after bouncing into the litigation arena. Issues: 1. Does a lawyer ever have the right to terminate the

process over the objection of the client? If the answer is no, what information must a collaborative lawyer give the client to keep the client cognizant of his relative position in reference to his goal or the shared goals articulated at the first joint meeting?

2. Is it ever appropriate for a collaborative lawyer to urge the client to terminate the process?

3. If a full team is already in place (MHP, FP and 2 lawyers) what can any collaborative team member do where one party has clearly not assimilated the collaborative process into the client’s thinking and

the process is spiraling toward disaster? Bring in a mediator? Bring in a MHP not as a communication coach but as a facilitator? Bring in a non-MHP facilitator?

Solutions: 1. Withdraw, yes. Terminate the CL process over

the objection of a client, no – unless termination is due to the attorney’s client’s failure to disclose information or whose actions compromise the CL process (which are not factors here).

2. Where the lawyer believes s/he “sees the handwriting on the wall”, the lawyer must continually keep the client abreast of costs incurred relative to the original projections, probable cost-producing challenges ahead and the estimated costs of litigation in the event of failure. A lawyer cannot allow the client to proceed unaware, oblivious to or in denial of the limitations of the collaborative process and its participants to deal with a party who cannot make the paradigm shift or at least adhere to the behavioral standards enunciated.

3. In the zealous representation of a client, the lawyer’s predictive abilities come into play. While no lawyer has a crystal ball, each lawyer makes judgments based upon past experience and assessments made on verbal and non-verbal clues perceived. The sum total of this “gut instinct” is part of what the client has retained. The lawyer as a zealous advocate must share these impressions with the client and assist the client in decision making consistent with that information and the ultimate goals of the client. If that includes urging termination of the collaborative process, that option must be presented to the client. However, the lawyer must distinguish between a perceived high probability of failure and the lawyer’s own aversion to continuing to deal with the other party.

4. Parties should be informed of all options to break an impasse: additional participants, collaborative mediators or facilitators, or highly trained facilitators who have not been collaboratively trained can be considered. A frank discussion of the probability of impending failure and the options available to the parties is a necessity, as are the additional costs associated with these options.

Unfortunately, Section 12 of the Protocols of Practice for Collaborative Family Law Attorneys, entitled Withdrawal and Termination, does not address the question of termination where the lawyer’s client or the other lawyer’s client cannot adhere to the principles or procedures of the collaborative law process, unless one considers such failure to be the equivalent of


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having “violated or proposes to violate the collaborative law participation agreement in a manner that would compromise the integrity of the process.” Section 2.02 of those same protocols, entitled Suitability of Matter for Collaborative Law, fails to address the unwillingness or innate inability of a party to comply with the behavioral expectations and processes of the collaborative model. Other relevant sections of the attorney protocols are worth consideration:

SECTION 2.03. FAITHFUL REPRESENTATION OF CLIENT. (c) The collaborative lawyer should at all times be faithful in the representation of the client, and zealously represent the client in pursuit of the client’s stated goals. This faithful representation includes informing the client about the law and its application to the client’s matter on a continuing basis, preserving confidential communications, and assisting the client to develop approaches, collaboratively with the other participants, to resolve the matter without judicial intervention. SECTION 6.07. IMPASSE AVOIDANCE TECHNIQUES. (a) A collaborative lawyer should not threaten to terminate the collaborative law process and should advise the client to avoid similar threats. If there is a genuine likelihood of termination, the collaborative lawyer should advise the other lawyer of this prospect. (b) Before terminating the process, the collaborative lawyers should explore deadlock-breaking techniques including partial settlement, mediation, securing the opinion of another lawyer, arbitration or referral to a special master for limited issues, a courthouse trip to view a trial, and an interview with a litigation lawyer.

V. MODIFYING THE COLLABORATIVE

PROCESS AND PROCEDURES A. Screening Clients –Just Say No Facts: Husband and Wife hire collaborative counsel. Both say emphatically that they do NOT want any joint meetings because they cannot stand to be in the same room with each other. They only want to negotiate through their current licensed family counselor (who is not trained in the collaborative process). These folks

take “high conflict” to a new level. Their signed Collaborative Law Participation Agreement provides the general language about neutral allied professionals but does not address specifically the involvement of this family counselor. No separate neutral MHP agreement was signed with the family counselor. After about six months, no progress is made. During this time Husband and Wife rarely have contact with their collaborative attorneys. Wife makes an attempt to settle by having her collaborative attorney prepare a settlement proposal to the other attorney; the Husband does not respond to it. Two months later, in utter frustration, the Wife sends a notice terminating the collaborative process; a single joint session (with a collaboratively trained neutral MHP who has a signed PA) was held, again without a settlement. Mediation was then attempted without any resolution. Eventually the parties proceed to litigation but settle before trial. Issue: How do collaborative attorneys reach a balance between (1) maintaining the “integrity” of the collaborative process and (2) letting clients call their own shots? Solution: In the Department of ‘Should Haves’ ……Perhaps the collaborative attorneys should have declined to sign on to this case. It had all the earmarks of a highly contested case from the outset: intransigent clients; historical discord that required the constant involvement of a family counselor to help the parties make most child-related decisions; clients who are very suspicious of the motives of the other spouse; a spouse who is an attorney and whose spouse always feels at a disadvantage being the only non-lawyer involved; and allegations of mental illness on one or both sides of the case. Difficult clients do reach settlements but rarely without joint sessions (at least one during which the Participation Agreement is discussed jointly and signed). Involving untrained professionals, left alone to be the main axis of communication exchange, is also not a good idea; they function in a vacuum, not knowing the principles of the collaborative approach and not knowing the ethical considerations of the collaborative process. On the other hand…..Should the collaborative attorneys have been more vigilant in monitoring progress (or lack thereof) with the untrained MHP? Should there have been an independent agreement signed with the MHP, allowing the attorneys access to the impressions of that professional? Such access would have signaled the attorneys earlier in the process that it was not working, and they could have jointly confronted their clients with that observation and strongly encouraged them to shift gears, thus saving time and legal fees in unresponded-to and failed settlement attempts. Do we, as collaborative attorneys, have a duty to recognize when the process is being


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abused, compromised, or undermined, and to steer clients out of the collaborative arena? Lawyers should not try to oversell and aggressively market the collaborative law process to the wrong people. Trying to determine the right people and the wrong people for the collaborative law process is a challenge. B. CL Premarital Agreements Facts: Husband-to-Be (HTB) approaches his attorney about a prenuptial agreement. He expresses an interest in being fair in his negotiations with his Wife-to-Be (WTB). HBT’s attorney discusses the method of negotiation used in collaborative law cases, and the HBT decides he wants to use the principles of collaborative law for his prenuptial. HBT’s attorney gives HBT a list of attorneys to give to WBT – attorneys who may consider stretching the concept of collaborative law. Issue: Can collaborative law in Texas be used to negotiate a premarital agreement? Solution: Section 6.603 of the Texas Family Code describes the collaborative law process only in the context of divorce (as does the modification of the parent-child relationship statute, Section 153.0072). However, a Participation Agreement can be crafted to describe the negotiation process the spouses-to-be want to use for creating their prenuptial agreement. While no court is involved initially with a premarital agreement (unless there are plans to seek the “blessing” of an agreed declaratory judgment), there really is not a litigation alternative. Yet, there can be a “grafting” of the interest-based negotiation, confidentiality, and disclosure collaborative provisions for use in the premarital context. There is also an opportunity for allied professionals to participate in the prenuptial collaborative process. MHPs may help the couple to work through their differences in interests which usually surface even at this early stage in the couple’s relationship. Financial professionals may help the couple to bridge their different philosophies concerning management of finances. Probate specialists can assist when it is necessary to dovetail prenuptial provisions with those in more extensive post-marital estate planning. The possibilities are endless. C. Skipping Over the CL Roadmap Facts: Husband and Wife, both approximately 35 years old, entered into the collaborative process with a full interdisciplinary team in March, 2007. The couple has two children, ages 5 and 7 years. Husband earns

approximately $250,000 in the IT field and travels extensively. Wife has always been a stay-at-home mom. Husband has decided that a female IT professional, whom he met in Europe, is now his soul mate and filed for divorce. It was later determined that thirty-five percent, or $350,000 of the community estate of approximately $1,000,000, is equity in the homestead which is free and clear. Another $250,000 is in a 401 (k) and $350,000 is comprised of cash surrender value in life insurance policies in which there would be a tax of $10,000 if surrendered. In the first meeting with the financial professional held in early April, Husband says he thinks it’s time to get on with their lives and proposes that the house be sold and the proceeds divided equally, that his Wife receive the 401 (k) and $50,000 of the cash value of the insurance and that he get the remaining $300,000 of the cash value. He proudly says this is fair and, furthermore, he will pay $1,500 per month in child support and not a penny more. Wife is still trying to process the affair, which she found out about in February, 2007, as well as her financial needs after the divorce. No post-divorce cash flow statements or preliminary list of assets and liabilities have been prepared as the FP is in the process of gathering information from the couple. Issues: How should the FP handle this unexpected departure from the “roadmap” explained, (and agreed to) by the couple at the first joint session? What are your thoughts on how this estate might be divided? Solutions: The FP told the Husband that his offer is certainly one that could be proffered at a future joint meeting when we get to the option generating phase of our roadmap. The FP informed both parties that the group was still in the information gathering phase of the collaborative process and asked if they had brought the financial documents that had been requested for the first meeting. He emphasized that both of them must feel comfortable that they have all of the financial information they need to make an informed decision regarding a division of the marital estate. Question: Should the mental health professional have been invited to attend the first financial session? Although this case is still in progress, it is obvious that Wife will need some time to heal and to prepare for the job market. Toward that end, it may be appropriate for Wife to receive more “up front” cash and attempt to stay in the house for a period of time with the Husband agreeing to the postponement of the sale for a year or two.


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VI. THE COLLABORATIVE TEAM MODEL A. Role of Financial Professional #1 Facts: A collaborative process is in effect. A Collaborative Law Participation Agreement (CLI-TX model) has been signed. Joint meetings are progressing with the assistance of both a MHP and a FP (who is also a certified divorce financial planner). Separate allied professional agreements are also signed for each. In the course of negotiations, the FP meets with Wife. The parties agreed in a joint meeting that the Wife would work with the FP on budgeting issues. Additionally, the FP proceeds to use his new software to calculate a value on a defined contribution retirement plan and to produce a ten-year projected cost-of-living and budget analysis of the Wife’s living expenses and the Husband’s future earnings. At the next joint meeting the FP presents his report and conclusions regarding the services he has performed, including a retirement valuation and a ten-year projected expenses and earnings in addition to the budget analysis. Both attorneys and the Husband are surprised, and the Husband is ready to bolt from the process because he differs strongly with the allied financial planner’s conclusions. Issue: How could the role of the FP have been defined better? How should this “disruption” in the process be handled? How can this case recover from the proverbial “skunk in the jury box” type of problem? Solution: The role of any allied professional should be defined clearly not only in the initial neutral professional participation agreement but also in the minutes, with a copy provided to the neutral professional. Further, the specific expectations of the FP should have been jointly discussed among both attorneys and the professional with the instructions to the FP memorialized in correspondence. And finally, the financial professional needed to provide to and discuss with the attorneys, before the meeting, the nature of his report. Also, the collaborative attorneys had the duty to ask the FP before the joint session, when preparing the agenda for that meeting, what was going to be presented. This is a case of failure to communicate all around! The CLI-TX Protocols of Practice for Collaborative Financial Professionals, Section 3.01, entitled Communications, states in part as follows: “Clients and lawyers should receive copies of all written communications between the clients and financial professional, except when, in the financial professional’s judgment, such communication might be counterproductive to the collaborative process. In that case, the written communication should only be shared with both lawyers.” The FP’s report and conclusions

should have been shared with the attorneys prior to the joint conference. Whether the FP exceeded his expertise, by offering a retirement projection that perhaps should have been prepared by a neutral actuary, is a concern. Additionally, ten-year projections may be polarizing and/or inaccurate in light of the current teetering economic environment. But the fault does not sit solely in the lap of the FP. The coordination and preparation for joint sessions is a MUST and one that requires the vigilant oversight of the attorneys and allied professionals. To put this case back onto a collaborative track, the parties could agree to hire a new FP. This would be costly and it would not take the first FP’s conclusions out of the mind of the Wife. Perhaps the FP will not charge for the analyses he performed beyond what he was asked to do. The FP could be enlisted to talk with both parties about “the other side” of his report….thus playing devil’s advocate contrary to his initial report (in the guise of option-generating). It is awkward, but may be very appropriate strategy to stop a meeting and have a team conference in another room to address problems of renegade team members. B. Role of Financial Professional #2 Facts: Husband and Wife are in a collaborative divorce. Husband is very “dependent” on the FP to help understand the financial aspects of the divorce. Husband requires multiple “off-line” individual meetings with the FP and builds a significant trust level with the FP. His attorney does not demonstrate a high patience level with him or his concerns. Issue: When the negotiation phase of the process begins, the Husband looks to the FP for advice on financial matters, not his attorney. The FP is uncomfortable with this because it is outside of the FP’s collaborative role and because it may impact his neutrality. Solution A: As a FP, be aware of creating too much of a bond with the client. Always, reinforce the attorney-client relationship. The FP needs to inform the attorney of the situation so that FP and attorney can participate in the collaborative law process in their respective and appropriate roles. Solution B: In this situation, ensure any one-on-one meetings with this client are attended by the attorney. This is critical in the negotiation phase as it will keep the FP from having to give advice.


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C. Role of Financial Professional #3 Facts: In the 20th year of marriage the Wife filed for divorce. The parties agreed before the first meeting to include a MHP and a FP. Those professionals were engaged by the attorneys. At the conclusion of the first joint meeting, the parties were told to meet with the collaboratively trained divorce financial planner (FP). Husband met with her one or two occasions alone. Unbeknownst to any other team member, Wife met with the FP numerous times and had an extensive telephone relationship with the FP. FP prepared a presentation for the whole team wherein she was to present the completed inventory and appraisement and numerous options which had been suggested by the parties or promulgated by the FP taking those suggestions into consideration. The FP’s presentation clearly favored one party, and her options were designed to equalize the income and life styles of the parties post divorce. Throughout her presentation the FP commented on Husband’s post-divorce obligations to Wife’s continued economic viability and used phrases such as “so Wife won’t have to live under a bridge while you live in the Waldorf” though it was clear neither party would leave the marriage with less than a million in cash and assets. The lawyers called for a break and counseled the FP about her choice of words and the skewed nature of her presentation. The post-recess presentation only exacerbated the problems. In a post-joint session debrief, the FP admitted that she had been counseled by other collaborative lawyers about her approach. To make matter worse, the team subsequently learned of the FP’s extensive contact with Wife and the fact that Wife had confided in her that she was consulting privately with a litigation attorney and that she did not truly trust her own collaborative attorney. The FP never disclosed this information voluntarily. The case reached an impasse and was set for trial. It settled on the courthouse steps, with the Wife receiving much less than offered by her Husband in the CL process. Issues: 1. How can collaborative lawyers effectively

evaluate a “trained” FP’s internalization of the collaborative model?

2. How diligently must the collaborative lawyers monitor the non-joint meeting contacts between FP’s and parties?

3. How often and in what form should FP’s report their contacts with parties to other team members?

4. Once collaborative lawyers have determined that an FP cannot conform to the collaborative model, how can they put the spilled milk back into the bottle? How can the damage be reversed? How can gulfs in expectations gulfs be spanned?

Solutions: 1. Clearly, the opinions of other collaborative

lawyers who have worked with the FP should be sought, but often collaborative lawyers, who work with these same people successfully in the litigation setting, are loathe to disparage the FP’s collaborative skills for fear of damaging the litigation relationship.

Hire only those FP’s who are tried and true to the collaborative model. But, then, the pool of available FP’s does not expand and will soon be unable to meet the growing needs of the collaborative community.

Mentor the new FP at a significantly reduced hourly rate in order to bring the FP into the fold with necessary skills.

2. A true conundrum. FPs help to keep costs down by eliminating lawyer fees for purely fact-gathering matters. If the lawyers must monitor all FP communications with the clients, the lawyers must bill for the time. How can the lawyers monitor such communications if the FP does not have a notification process? If the FP does not cooperate with the attorneys’ oversight (especially if the FP is known to be a loose cannon), then do not use that FP in any future CL cases.

3. FP’s should report in writing all contact with the parties outside the joint meeting, disclosing the nature of the information discussed, the work performed by the FP and the timetables for completion of on-going projects.

An FP, as any other team member, should disclose information learned which impacts or may impact the collaborative process (positively or negatively) or relationship between a lawyer and the client. Clearly, negative comments by a party about a lawyer should be communicated immediately to allow the lawyer to address issues immediately. Discovery of a “shadow negotiator” or “hidden attorney” must be disclosed to the team immediately.

4. Work with the MHP to reeducate the parties about the CL process. Bring in a separate collaborative mediator or facilitator to accomplish that purpose and to restore collaborative thinking in the group. An FP has an obligation to remain neutral and to report pertinent information to each lawyer. The following provisions, found in the CLI-Texas model FP agreement are instructive:

1. Engagement of Neutral Financial

Professional The FP agrees that he/she will act as a neutral

financial professional and will not align with either client or any lawyer in this


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collaborative matter. Any work product, as defined in Section 8, prepared by the FP and provided to one client and his/her lawyer, shall be provided to the other client and his/her lawyer.

Working as a Collaborative Team member,

the FP’s objective is to provide financial services as requested [in writing] with the goal of assisting the Clients in achieving what the Clients perceive as their best possible outcome under the circumstances. Specifically, the FP’s duties may involve the following:

(a) Assisting the participants in better

understanding the financial issues unique to the Clients’ circumstances;

(b) Assisting the participants in gathering and organizing financial information concerning the Clients’ marital assets and liabilities, including preparing a draft of a joint inventory and/or schedules of identified property;

(c) Assisting the participants to identify, understand and, if necessary, trace separate property, reimbursement or economic contribution claims;

(d) Assisting the participants in gathering and organizing financial information concerning the Clients’ income and expenses;

(e) Preparing a financial projection of future estimated client cash flows;

(f) Developing federal income tax estimates for the Clients;

(g) Providing tax-effected estimates of the value of marital property;

(h) Preparing present or future value calculations on marital assets and/or liabilities;

(i) Assisting the participants by developing and analyzing options for allocation of the Clients’ income and expenses;

(j) Assisting the participants by developing and analyzing options and scenarios for a division of the Clients’ marital estate;

(k) Assisting the participants in negotiating a financial outcome acceptable to both clients;

Add additional responsibilities as

appropriate to this matter: (l) ________________________________ ________________________________.

The FP is committed to adhere to the Protocols of Practice for Collaborative Financial Professionals adopted by the Collaborative Law Institute of Texas, Inc., which specifically embrace the administrative or licensing rules governing the FP in his or her jurisdiction or practice area and the rules and standards of conduct promulgated by the FP’s credentialing organization(s). Such Protocols and this agreement are subordinate to the rules of professional conduct governing the FP’s specific financial discipline. The FP represents that required disclosures have been provided to the Clients, who acknowledge receipt thereof.

.......... 9. Open Communication The FP may communicate among the team

members including, but not limited to, communicating with each client individually or together, a client with his or her collaborative lawyer present, each collaborative lawyer individually or together with the other collaborative lawyer, any lawyers consulted for an opinion during the collaborative law process, and any other professionals retained by the Clients who have signed a participation agreement in this matter.

The Clients hereby release the FP and the

collaborative lawyers to share any information, opinions and/or communications regarding this matter with any of the participants, specifically with each other, individually or collectively; with any lawyers consulted for an opinion during the collaborative law process; with other collaborative professionals who have signed a participation agreement in this matter; and/or with the Clients, together or individually. The Clients understand and agree that the FP, at his/her discretion, may reveal to one client what has been communicated by the other [or by the children].However, attorney-client privileged communication that a client specifically instructs his/her collaborative lawyer not to reveal will not be revealed.

10. Written Team Communication In order to facilitate the process, there are

times that the Collaborative Team may engage in written internal communications


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intended only for the Collaborative Team. A written communication designated as a “team communication” will not be communicated to the Clients.

11. Meetings without Collaborative Lawyers It is contemplated that the FP may meet with

the Clients without the collaborative lawyers present. The FP promptly shall update the lawyers on any such meetings, and shall communicate any preliminary understandings reached in those meetings to the collaborative lawyers. The FP may communicate such preliminary understandings in writing to the lawyers with a copy to the parties (email suffices) or verbally, but shall not draft any agreements. The FP will be paid for the time it takes to prepare such correspondence and engage in such communications. The Clients will not be asked to memorialize such understandings. The Clients will not sign any binding agreement without both lawyers’ review.

D. Role of Mental Health Professional Facts: In the 20th year of marriage the Wife filed for divorce. The parties agreed before the first meeting to include an MHP and an FP. Those professionals were engaged by the attorneys. However, due to Husband’s extensive travel schedule, the MHP only met with each spouse approximately 20 minutes immediately before the first joint session. All subsequent MHP-party meetings occurred for brief periods at the beginning of joint meetings or over the telephone. It appeared in the brief meetings prior to the first joint session that the parties were capable of functioning in a collaborative manner. Actual behavior in the joint session demonstrated otherwise. The Wife refused to sit on the same side of the table as her Husband; she also refused to sit where she would be forced to look at him. Wife either refused to verbalize her thoughts or used the joint sessions to verbally castigate Husband. The MHP worked diligently within the joint meetings to manage the Wife’s anger and the Husband’s increasing frustration at the lack of progress in the collaborative process. Outside of joint sessions Wife continued to lambast her Husband anytime he was in town. The MHP was able to engage the Wife on the phone and through email. Those interactions seemed reasonable and productive, but Wife refused all face-to-face meetings (even with her attorney present) and also refused a referral for therapy. The MHP had several phone conversations with the Husband which seemed

productive. The MHP was very careful to maintain a clear neutral stance. Nevertheless, the case reached an impasse and was set for trial. In a courthouse-steps settlement, Wife received a portion of the greatly reduced estate which was significantly less than Husband had tried to give Wife during the CL process and even after litigation attorneys were retained. Issues: 1. The timing and circumstances of contact with the

MHP in preparation for all joint meetings. 2. Identifying people who do not possess the skills

and are unable to embrace the process and adhere to the rules of conduct.

3. MHP’s inability to meet with parties outside the joint meeting due to refusal or the work/travel schedule of a party.

Solutions: 1. The MHP becomes an integral part of the team

communication from the outset. An MHP retained prior to the first joint meeting should meet individually and/or together with the parties to make certain that they fully comprehend what the CL process entails and make some preliminary assessment of each party’s ability to comply.

Section 4.02 of the Protocols of Practice for Collaborative Mental Health Professionals provides as follows:

SECTION 4.02. TEAM CONCEPT. Clients engage the mental health professional with the advice and input from their lawyers. The mental health professionals should consider themselves part of the collaborative law team, working with the other participants to achieve mutual agreements. To this end, it is essential that each team member be informed of sensitive issues–including financial and psychological issues – that might complicate an agreement.

2. Some MHP’s across the state take the position

that the MHP should have no contact with either party prior to the execution of the CL participation agreement and neutral professional’s contract. At the very least the neutral MHP’s participation agreement should be signed before meeting with the clients should such meetings occur before the


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initial joint session is scheduled and before the CL PA is discussed and signed.

3. Even if they have heavy travel schedules, parties need to commit sufficient in-town time to actively work with the MHP in joint or individual off-line meetings to deal with issues relating to the CL process. Lack of availability to participate in CL joint meetings is a red flag to problems. This issue should be discussed at the first joint session under the heading of “timing issues.” It always helps to schedule several meetings into the future when everyone is present at the first joint session and when everyone has been told in advance to bring their personal/business calendars for such scheduling. Not all of the scheduled meetings may be necessary; but better to have them locked in rather than go through the pain and agony of piecing together six individual calendars via telephone or email. Unnecessary meeting dates can always be cancelled.

E. Communications among Team Members Facts: The lawyers and MHP send around a series of “off the record” emails, sometimes referred to “off line communications” to the effect that Wife has a drinking problem and thus is endangering the children and needs treatment. Wife maintains she does not have a drinking problem and everyone is overreacting to recent problems she describes as bad luck (getting a DWI after her birthday party). Wife's lawyer in the “off the record” emails agrees with the assessment that Wife has a serious drinking problem and presents a danger to her children, but has not yet confronted Wife, his client, about the drinking issue. Wife fires her lawyer, hires a new collaborative lawyer. Wife then demands from her terminated lawyer, copies of all correspondence and emails including specifically any “off the record” emails. Issue: Does the terminated lawyer provide Wife with copies of all correspondence and emails, including “off the record” emails?

Solution: Yes. Texas Disciplinary Rules of Professional Conduct, Rule 1.03(a) states “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Paragraph 10 of the Neutral Allied Mental Health Participation Agreement is entitled “Communications “Off the Record”” and reads as follows:

“The parties understand and agree that there are times that the collaborative team or any number of them, including the MHP, may

communicate “off the record,” which means that they may communicate verbally without reporting such communications to the parties or by email or other written means without copying the parties; however, if either party is copied, both will be copied. The MHP, lawyers and parties understand that although an email or other written communication may be labeled “off the record” and not forwarded to the parties during the process, those written communications are part of the file and may be forwarded to the client and/or to the client’s successor counsel when transitioning the file.“(Emphasis added.)

Paragraph 10 of the Neutral Allied Financial Professional Participation Agreement is exactly the same except that Financial Planner or FP is substituted for MHP. If the “Off the Record” communications in the above scenario had all been verbal, rather than written, would the duty of Wife’s lawyer to communicate with her and keep her informed be any different? No, based on Rule 1.03 of the Texas Disciplinary Rules of Professional Conduct. Would the duty of Wife’s lawyer to communicate with her be any different if the nature of the communication was of such a nature that the MHP told Wife’s lawyer that for Wife to receive the communication would be detrimental to her mental and physical health? One option to avert the problems anticipated in this case would be for Wife’s attorney #1 to transfer her files directly to Attorney #2 on the off chance that the Wife would not directly see damaging commentary. Certainly Attorney #1 should discuss the situation with Attorney #2 as well. F. Inexperienced CL Attorney Facts: Marriage has lasted 20+ years with housewife and a low-level banker. There is minimal community property and significant separate property on the Husband’s side. The couple has a junior-high aged child and Wife had a career 20 years ago and has not worked outside the home since that time. A depressed Wife must enter the workforce. Husband is volatile, and angry with everyone intermittently. In addition, an inexperienced unpredictable attorney represents Husband. Wife is represented by an experienced collaborative attorney who knows the other attorney will be an unpredictable team member and has a potentially volatile case to manage. Issue: What steps can be taken to compensate for an attorney who is not experienced in CL and who has been hired in a volatile case?


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Solution: 1) Include experienced neutrals (MHP and FP) to assist in helping the attorneys and the couple through the process and referring both for mental health assistance as support outside of the collaborative process. 2) FP needs to work with both parties but especially with the Wife’s budget, generating options to address inequities in income going forward. 3) A career consultant can be a positive adjunct in this issue to assist in career development. Experienced team members need to assist the inexperienced attorney by example, staying on task and keeping a tight rein on the collaborative structure. Maintaining a predictable structure is key with agendas at every meeting and team meetings before and after each joint collaborative meeting. Following protocol is key: for example, gathering information completely before generating options and preventing a volatile client from starting to negotiate prematurely out of fear or anger. If one of the parties is allowed to take over a meeting and develop a personal agenda, the team has failed its responsibility. The MHP must monitor the pace and flow of the meeting, insisting on breaks if the discussion becomes unproductive and helping the couple to talk to one another in a civilized manner. Interests are key here or positional thinking will take over. Documenting minutes of the joint collaborative meeting carefully, circulating the minutes quickly after meetings and making substantial decisions in the joint collaborative meeting with the entire team present helps to avoid confusion and misinterpretation. G. Role of Mental Health Professional in a High

Conflict Case Facts: The couple has been married 10 years with three children, ages 7, 5, and 2. Wife has had multiple affairs during the marriage and wants to be divorced quickly. The couple has a large home with equity and extensive rental property. Wife has a part-time job that will not support her and Husband is employed in the technical field. The Wife is demanding, entitled, and provocative. Husband is rigid and wants to pay Wife back for her behavior. Although he is not overtly angry, he often mentions the law model and wants to offer the bare minimum in the asset division, ignoring the Wife’s interests completely. Husband also wants the children to live with the Wife with minimal contact with him as he travels extensively with his technical consulting work. Issue: How do you anticipate and deal with a potentially high conflict case? Solution: The attorneys are very experienced colleagues and also personal friends. They do not want

to go to battle thereby mirroring the couple’s unproductive communication patterns. Also they are uncomfortable with all the underlying tension and are uncertain as to how to resolve it. They talk with one another frequently and jointly discuss issues and problem solve so that they keep the lines of communication open. The MHP must meet with the parties on an as needed basis to diffuse some of the tension, normalize the fact that each will need to compromise, and remind the parties of the children’s interests going forward. Assisting the Husband to express his real interests rather than using subtle threats and helping the Wife to understand that while the estate is substantial, it is not unlimited. Confronting the conflict directly must be done to keep the process moving. FP must continually play a balanced role so that each party gets attention to their needs and concerns, insisting on full disclosure of financial information and keeping both parties informed about all financial information. Additionally, the costs for the children must be clearly identified and documented and kept separate from the Wife’s budget, lest the children suffer from their parents conflict. A parenting plan for the children must be worked out with both parents learning about the effects of divorce on children and the need for contact with both parents. Attorneys must work to address each issue as it comes up, such as how will the properties be valued. The tendency for the clients is to focus on the asset division and threaten one another. The attorneys’ challenge is to focus on the issues and address them one by one. Schedule the meeting for a maximum of 2 hours, or 90 minutes if they can’t handle a 2-hour meeting without erupting in conflict. Always have a tight agenda with a limited number of “hot topics” to be discussed. The double bind here is that they “want it over” as quickly as possible. The REALITY is that they can only decide a few things without getting upset and being unable to make rational decisions. Balancing the issues with their abilities to discuss them is the challenge. One option while addressing key conflicts is to take breaks periodically so that clients may meet privately with any member of the team. Another option is to separate the clients with their respective attorneys in different rooms. The neutral team members travel back and forth to assist in the negotiation process, lessening the opportunity for the clients to trigger each other. Expect conflict and don’t lose the momentum. Both attorneys must alert team members to any “hot” topics and be fully prepared and cognizant of them prior to going into the meeting.


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H. Early Involvement of FP and MHP Facts: Wife is 64 and Husband is 65 and Husband is ready to retire. Children are grown and many family members are ongoing advisors including siblings of the couple and their grown children. Wife has been a homemaker and handles the finances. Couple has rental properties and it appears they must be sold in order to create two separate households. One party does not want to sell them. Issue: One party is suffering from depression and Wife is very anxious about financial stability going forward. Husband has significant separate property and Wife is very concerned about going forward emotionally and financially. Husband appears ambivalent about divorce and it is difficult to read the direction he wishes to take. Attorneys are well versed in collaborative and the Wife’s attorney knows it’s important to assist Wife with extra support during the entire process. Both attorneys are concerned with the complications of sorting out separate and community property as well as the concomitant emotional difficulties surrounding the financial aspects of the case. What can be done at the outset of this case to keep it on track? Solution: Wife’s attorney contacts MHP and asks that Wife be seen prior to the first joint collaborative meeting to calm her fears and stabilize her so that she may be more focused going into the initial meeting. In order for either of the clients to see the MHP, they should BOTH sign the MHP’s participation agreement (PA). By signing, it is very clear that neither is seeking psychotherapy but specifically looking for assistance during the collaborative process. The PA may be sent electronically and the signature page may be signed by both parties and scanned or faxed to the MHP. In this way limits are clear and defined going forward. If one or both parties opt out, the MHP ends participation in the process. The MHP must be very clear in assisting both parties with their specific interests and restating them at each meeting (when appropriate) to allay fears regarding the future. The party with little separate property must be assured that the other party is committed to a stable financial future going forward. The attorneys must choose a seasoned financial professional, hopefully in the same age group as the clients. The FP may be interacting with various family members and must quickly gain the confidence of all the participants. Throughout the case the attorneys must keep in touch and monitor the potential conflicts. Any misunderstanding regarding the finances can trigger fear and positional thinking with the parties. The collaborative structure of information gathering and agreeing on the value of their estate is crucial before options should be generated. Placing the cart

before the horse is dangerous and unproductive especially in this case. I. Role Confusion: Detaching Team Members Facts: A young couple in their late twenties with 3 young children has decided to divorce. Both are very immature and fight over any issue that is being discussed. Both talk to shadow advisors constantly (parents and friends) and change their minds frequently. Conflicts flare quickly and there are plenty of accusations to go around. All team members want to help, give advice, and the clients use this advice to further their individual positions. Both clients are argumentative and focus on attacking the other and being dissatisfied with various team members. Both need help to learn about the collaborative process and what is acceptable behavior. Both need help with parenting and learning about the effects of divorce on young children. Issue: Both attorneys are frustrated and cannot get their clients to focus on issues. Attorneys struggle throughout the case to stay focused on maintaining a productive process. Both are concerned because they also argue and promote their clients positions in private conversations with each other. Solution: This is a perfect example of the entire team taking the on the client’s responsibilities, confusing their own roles and not communicating well as a group. The MHP must set clear limits and continue to enforce them to keep order in the meeting. If it is not possible, take breaks while the clients regroup, but do not allow endless arguing during the meetings. Often the young couple, aware of their budgetary concerns, will see that taking constant breaks is wasting their resources. The MHP must work with the attorneys to help them place the burden of decision-making on the clients’ shoulders. Sometimes consulting with the attorneys in private can be helpful. The “no surprises” rule here works well. The attorneys must continually problem solve with each other and update the team to keep the process on track. All team members must support the young couple and remain detached enough to advise but not make their decisions for them. Asset division works best with this high-conflict couple when options are generated in the larger group and breaks are scheduled so the parties may talk in private with their respective counsel. Decisions of any sort must be repeated in the full group gathering and documented in minutes, Rule 11 documents, and settlement agreements as appropriate.


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J. Untrained FP #1 Facts: Husband and Wife are in a collaborative divorce. The attorneys determine that this is a situation that would be best handled by the team model. The couple engages a local MHP based upon the recommendation of the attorneys. The couple requests that they retain their personal financial planner as the Neutral FP. The attorneys reluctantly agree, and the FP is retained for the collaborative divorce. Issue: The FP is not collaboratively trained and does not understand the role of the neutral. As a matter of fact, the FP frequently gives advice to the Wife not to accept anything less that 70% of the assets. The FP also refers the Wife to a litigation attorney as backup in case she does not get 70% of the assets. The process is close to termination due to the inability to “move forward” with anything financially. Solution: Retain a different FP who is collaboratively trained. This person may be able to help shift the couple back to interest based negotiations. Diplomatically, try to eliminate or at least minimize the involvement of the personal FP. K. Untrained FP #2 Facts: Husband and Wife are in a collaborative divorce. The attorneys determine that this is a situation that would be best handled by the team model. The couple engages a local MHP based upon the recommendation of the attorneys. However, the couple refuses to hire a joint Neutral Financial Planner. The Husband is confident he can “handle” the financial aspects of the situation. The Wife plans on working with her financial planner that she has been working with for over 15 years. Issue: The Wife’s FP (not trained in collaborative) is unable to make any of the joint sessions and does not understand why he should even come. When the financial aspects of the divorce are discussed, Wife is often positional based upon input from her financial planner. Solution A: Have the attorney for the Wife attend any meeting that the Wife has with the FP. That will help ensure better communication and ensure the FP understands the context of the negotiations. Solution B: If negotiations do not seem to be progressing, it may be a good opportunity to retain a collaboratively trained FP. The FP can then, perhaps, work directly with Wife’s FP to help facilitate the negotiations.

L. Expanding the Team: Neutral Child Specialist:

Facts: Husband and Wife, have two sons ages 10 and 15. Husband and Wife are participating in the collaborative process for their divorce. Wife’s attorney stated, in conference call before the first joint meeting, that her client indicated both are in agreement with temporary parenting plan and she expects neither will want to change what is working well. At first joint meeting, when temporary concerns are addressed, Husband indicates he is unhappy with current parenting plan (while separated) and wants to begin working on a more acceptable plan. Wife is clearly surprised and indicates their sons have told her they do not want anything to change and that they will be unhappy to alter the current parenting time. Wife also shares several other pieces of information about the parenting plan framed as, “This is what our sons want……….” In addition, Husband has a history of severe depression, although both indicate he is functioning well for the past several months. Issue: Husband and Wife clearly had different beliefs, prior to entering the process, as to the temporary parenting plan. This is an obvious indicator that working out permanent parenting plan may not flow as easily as had been previously noted. In addition, Wife appears to be “speaking for the children” as opposed to herself. The team notes a need for an appropriate way for the children’s voices “to be heard” as opposed to being relayed through Husband and/or Wife. In addition, there is a clear need for Husband and Wife to have more direct communication as parents about the best interests of their children. The team also has a concern about Husband’s chronic depression and what effect, if any, this may have on the process or in future parenting. Solution: The Neutral MHP meets individually with Husband and Wife to develop a trusting relationship. Immediately thereafter, she meets with both together to discuss how the children can have a voice in the process. (This has previously been discussed with both lawyers, who are in agreement) The Neutral MHP suggests that a Neutral Child Specialist meet with the children to determine their needs and wants. Both parents are quickly in agreement with this idea and appear to understand the value of doing this, as opposed to one parent being the voice for the children. The team asks the Neutral MHP to recommend a child specialist, who is collaboratively trained. The children, in turn, meet with the child specialist. The child specialist has also signed a Neutral MHP Participation Agreement and can, therefore, communicate openly with the team. The information the child specialist


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supplies serves as a springboard to begin open, constructive dialogue about the permanent parenting plan. In addressing Husband’s chronic depression, the Neutral MHP also “checks in” with him to ensure he is seeking professional help regarding therapy and medication. M. Attorneys at Odds #1 Facts: Husband and Wife have one 16-year old son and an estate valued at approximately $150,000.00. A Neutral MHP is also asked to work on this case. Interests and concerns of Husband and Wife were developed at the first joint meeting, as well as scheduling additional meetings. In addition, the agenda for the second meeting was determined. Husband’s lawyer agreed to prepare the minutes, including agenda for second meeting, and forward to all for review and comment within 72 hours. As the second meeting begins, Husband’s lawyer states “Sorry I did not have time to prepare and distribute minutes from our first meeting and today’s agenda.” The Neutral MHP notes the irritation on the face of Wife’s lawyer, as well as other participants in the room. This sets the tone for a meeting that has undertones of discontent on everyone’s part. During the meeting, there were several negative interchanges between the lawyers. Issue: The lawyers’ styles appear to be vastly different. Not only do they handle preparation of paperwork in a different manner, but they appear to be verbally “at odds” with one another from this point forward. It becomes more and more obvious that the lawyers are having difficulty working together in this process. Solution: The neutral MHP said the “elephant in the room” out loud in the debrief session after the second meeting. She stated, “I am sensing discomfort between the two of you and want to help you talk to one another about it in a constructive way. If this does not happen, my concern is it can and will have a negative impact on our work with this family.” Conference calls amongst team members, were also suggested to work through the communication issues while not in the presence of the couple. The Neutral MHP continued to encourage open dialogue between the lawyers (about this process issue) throughout the process. If one lawyer is too busy or lazy to prepare agendas and minutes, the parties and lawyers could agree that the other lawyer will have the responsibility of preparing the agenda and minutes of every meeting, rather than rotating that duty between the lawyers.

N. Attorneys at Odds #2 Facts: Husband and Wife are in a collaborative divorce in which a neutral MHP and FP have been hired. The Husband and Wife believe the joint sessions are unproductive because they feel the attorneys “aren’t on the same page” because they seem to not trust each other. Issue: The Husband and Wife decide that they want to work independently with the MHP to resolve any child related issues and the FP to resolve any financial issues. They want the attorneys to only draft the decree. Solution A: As a FP or MHP, this will come up in “off-line” meetings with clients. Don’t sympathize with clients on this point. Reinforce the value of the entire team and show examples of how they have benefited from the joint sessions. Solution B: If the clients continue to insist on no further joint sessions, the team needs to discuss in detail the next steps to take. The FP and MHP need to determine why the parties do not want the involvement of the attorneys and meet with the attorneys regarding same. Each attorney could meet with his/her own client regarding the involvement of the attorney. The entire team could meet regarding the involvement of the attorneys. No solutions beyond this… VII. MANAGING CLIENT CHARACTERISTICS A. Alcoholism Facts: Husband and Wife have three children, ages 5, 7 and 14. Husband has been in recovery from alcoholism for six years. They are working through their divorce in the collaborative process. There are two neutrals involved in their case: a MHP and a FP. In the third joint meeting, Wife indicates that she believes Husband has relapsed and is drinking again. She expresses concern about the children being exposed, in some way, to his drinking. Issue: Is it necessary to address this concern at all? When should it be addressed? How should it be addressed? What impact will addressing it, or not addressing it, have on the agreement? What impact will addressing it, or not addressing it, have on the family? Who should address this information: the Neutral MHP, a substance abuse evaluator or a therapist? Solution: Upon hearing this information, the Neutral MHP called for a break in the meeting. She asked all participants if they would be comfortable with her spending 15 minutes with Husband and his lawyer. All


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encouraged this. The Neutral MHP’s goal during this discussion with Husband and lawyer was: a) determine if there was validity to Wife’s concerns; b) if so, determine length and severity of relapse; c) make appropriate referral to substance abuse program/professionals and assess Husband’s willingness to attend. The joint session continued, with Husband and lawyer giving a summary of information discussed during the break to everyone in the meeting. All agreed the process would continue. Husband agreed to make an immediate appointment at an outpatient substance abuse treatment program. Husband and lawyer agreed they would update everyone in the process of his progress and Neutral MHP would monitor such progress. B. Clients Moving at Different Speeds Facts: Husband and Wife, with two children in high school, are involved in the collaborative process. They have a 22 year marriage. Husband admits he has fallen in love with another woman. He wants to end the marriage respectfully, but quickly. Wife states she is devastated, as she saw no indications of this affair. In the first joint meeting, the MHP puts a 1 to 10 scale on the board labeled Readiness for Divorce. Wife indicates she is a 1 on the scale, struggling to imagine this will occur. Husband indicates he is a 9 on the scale. All team members acknowledge this is a vast difference and may impact the process. (Note is given to Expectations of Conduct that indicate this process can only go as fast as the slowest participant) Issue: Neither person is right or wrong in his/her readiness for divorce, yet there is a vast difference. How do the lawyers/MHP/FP work with this couple in a productive manner? How much time and energy is devoted to helping the Wife go through a grief process so she is able to fully participate in the meetings? If this has to occur, how are the Husband’s needs to accelerate the process addressed? It is clearly an issue that each one of the professionals will need to address in his/her work with Husband and Wife. Solution: The MHP recognizes the importance of developing a trusting relationship with Husband and Wife as soon as possible. The MHP meets with each one individually, to hear his/her story, and to begin to assess how to meet the different emotional needs. The MHP refers each one to individual therapy to begin as soon as possible, and explains the collaborative process to each therapist for educational purposes (with permission from Husband/Wife). In addition, the MHP has on-going meetings with the couple during the process. These meetings are focused on how they can communicate effectively with one another during this process.

C. Client Boundary Issues Facts: Marriage has lasted for 18 years with an estate worth $20+ million dollars. Couple has two minor children. Husband has built large estate in the construction business during the marriage and Wife has been a homemaker during the duration of the marriage. The estate has been characterized as community. Wife is angry, extremely insecure, and regularly devalues her attorney’s efforts on her behalf. She often asks financial questions during the joint collaborative meeting when the answers have already been sent to her by email. She is fragile and seeking approval from her Husband while devaluing her Husband openly in meetings and also ambivalently wanting him to reconcile. Issues: How can the attorney manage the client and maintain boundaries so Wife doesn’t start to control the attorney’s schedule? How can an attorney cope with being constantly devalued, insulted, etc.? What resources can be found to ally Wife’s concerns about sharing the estate? Since Wife’s likely share of the estate will be ample to bring suit or complaint during or after the divorce, how does the attorney minimize the chances that significant difficulties will arise or that ethics will be called into question? Solution: In all cases it is important to determine if you want to accept the case. In the first consultation, notice how the Wife speaks of and probably treats her Husband. Knowing that she will likely treat you in the same way when she is frustrated, is this a case you want to accept? If you can handle having your boundaries challenged at every turn, are able to be detached, and are a good limit setter, this is the case for you. Given the complexity of their estate and the length of time it will take to value, you are likely making a decision that will involve at least 6 months of your life. Here are some ongoing management suggestions for attorneys: 1) Set limits all during the case from telephone calls to face-to-face meetings and consistently follow through. 2) Review her goals/interests on an on-going basis to stay on track and ask how you can both work together to achieve as many goals as possible. 3) When she insists that she needs you to give her the answers and make the decisions, professionally inform her regarding her legal options given the particular issue and insist that she be responsible for the final decision. 4) When the party demands that you do or say certain things to gain the upper hand or threaten her spouse, inform her that collaborative is an interest-based negotiating tool, but a poor method to resolve previous marital discord to change individuals by force or intimidation. Some issues cannot be successfully addressed in


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collaborative. Make that clear and begin to focus on issues that can be addressed by this process. D. The Controlling Client Facts: Husband and Wife have entered the collaborative process for their divorce. They have four children, ranging in age from 4 to 14. A Neutral MHP is also participating as a member of the collaborative team. Husband is CEO of a large company. Wife has not had paid employment since they married. Husband and Wife appear to have dominant-submissive qualities in their marital and parenting relationship. Expectations of Conduct are explained in first joint meeting. (i.e., no interruptions, speak for oneself, use courteous behaviors and words, etc.) Within minutes of this explanation, Husband begins ignoring those expectations. Husband frequently interrupts all participants, is disrespectful verbally and nonverbally to both lawyers, and often attempts to dominate or disagree with anything said by Wife (and, at times, Wife’s lawyer). Issue: In the debrief session immediately following the first session, the lawyers and Neutral MHP discuss the following questions: Is this an appropriate case for the collaborative process? Since it appears Husband is used to being in a dominant position and the primary decision maker, is he capable and willing to “step back” at times? Is Wife willing and capable to “step forward” and be more verbal about her needs and wants? What does each team member need to do when Husband interrupts and/or is disrespectful in some manner? How is integrity of the process maintained with this communication style? Solution: The Neutral MHP began immediately, after reading Expectations of Conduct, asking Husband not to interrupt. In addition, the Neutral MHP asked Husband to be willing to hear what Wife and lawyers have to say; stating it was important for him to know what Wife is thinking and feeling (even if he disagrees with what he hears). During the debrief session mentioned above, lawyers and MHP agreed that it would be crucial for MHP to develop a trusting relationship, outside of joint meetings; with Husband and Wife as soon as possible. This relationship was seen as crucial if Neutral MHP were to confront the inappropriate behavior or words that may occur in future meetings. In addition, it was important that MHP “coach” the Wife to find her voice and express her true interests, concerns and goals. Both lawyers also agreed to work with his/her client on expressing their true interests and appropriate behavior in the meetings. Working with the clients outside of the joint

meetings appeared to have a positive effect on communication styles in the joint meetings. E. The Oppositional Client Facts: Wife left Husband and three children to live with her female lover who lived about 200 miles away. By accident or design, Wife procured the services of a collaborative lawyer who also happened to be gay. The issue of her change of lifestyle choice provided an unspoken undercurrent. Wife’s choice to move 200 miles away from her children was a thorn which pricked every proposed option because distance, inconvenience and travel expense appeared, from the perspective of the listeners, to impact all decision making. Wife viewed any discussion about her options as a direct attack on her. After a time, it became apparent to the other lawyer and the MHP that the lawyer representing the Wife was becoming psychologically enmeshed with her client. The MHP spoke directly with the Wife’s lawyer about the issue without success. The Husband’s lawyer addressed the issue with Wife’s lawyer in terms of the collaborative lawyer’s duty to educate a client about perceptions and their impact, the need to assume the best intention on the part of a speaker absent clear and convincing evidence to the contrary (not mere fears) and the need to move the process toward an effective option generating session to avoid impasse. As Wife’s perception of condemnation deepened, her behavior in meetings became appositional, hysterical, and ridiculing. From the beginning, Wife was consistently late for meetings, refused to comply with production of documents and was openly critical of Husband and his efforts to manage the house and rear the children in her absence. The MHP went out of her way to accommodate Wife’s work and travel issues to set up meetings but was unable to help the Wife master her fears or curtail her behavior. Every suggestion for outside help made by any team member was rejected based on cost alone. Efforts to address advantages of shortening the process by inclusion of additional professionals could not overcome the fears of the parties about money. Efforts to explain that unproductive behavior in and out of the sessions was costing them more than the additional professional was not something the parties could assimilate. An impasse was declared, but after an hiatus of 45 days, when neither party could come up with the money to retain litigation attorneys, the parties agreed to return to their collaborative work and settle the case in a less-than-collaborative manner, but settle they did.


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Issues: 1. How does a collaborative lawyer or other team

member address the sensitive issue of lawyer-client enmeshment without being perceived as being uncollaborative or engaging in “divide and conquer” litigation tactics? How does one person get any other person to look inside themselves at their emotional entanglements in professional relationships?

2. When is it appropriate for a collaborative professional to let go of the clients and let them self-destruct or come to reason on their own?

3. Identifying people who do not possess the skills and are unable to embrace the process and adhere to the rules of conduct.

4. MHP’s inability to meet with parties outside the joint meeting due to refusal or the work/travel schedule of a party.

Solutions: 1. I have no clue. My efforts and those of the MHP

were without success. 2. When the team members can think of no more

open-ended questions, no direct questions and no team-generated options for making progress, someone has to say, “I have done all I can do. You parties are going to have to figure out a solution, get other collaborative lawyers or terminate the process.” We must all remember that the outcome belongs to the clients. We are not responsible for their success or failure, especially if one or both parties refuse to accept the gentle corrections of the team designed to bring thinking and behavior in line with the Behavioral Expectations.

3. Unfortunately, it may well be that we are never going to know who falls into this category until after the Participation Agreement(s) has/have been signed.

4. Again, unfortunately, clients often say they will make the commitment to utilize the services of the allied professionals, but after signing the Participation Agreements, refuse to accommodate scheduling or act on the information given in those sessions.

I think it is important to remember two things: -- Team members are human and bring into the

collaborative process the psychological baggage they carry into everything else. Honest but gentle confrontation of the impact of that baggage on the process should be viewed as non-threatening, but it is hardest to see those things which are closest to home. One would hope that all collaborative

professionals embrace all experiences with the hope of self-revelation and insight, but few people do, collaborative or otherwise.

-- The clients are morally and ethically responsible for the outcome of their case. Clients, too, bring into the process their own emotional baggage. If a person did not deal with the baggage prior to the divorce, it is unlikely the person will deal with that baggage during the divorce. The stress of divorce more often amplifies the emotional baggage rather than minimizing it. Collaborative professionals are not charged with fixing the people or the case and must guard against assuming such responsibility.

F. Older Clients #1 Facts: Husband and Wife are in their mid-sixties. Wife believes that her Husband’s desire for a divorce is the product of a mid-life crisis. This is a long-term marriage, Wife has not been employed outside of the home for decades, and their marriage has been amicable though without “sparks” for the last few years. Husband began working out, bought a red sports car, and changed his hair-style. Wife convinces her attorney that indeed there is a strong possibility that a reconciliation will occur if given enough time. Wife’s attorney approached the Husband’s attorney and discussed the possibility of reconciliation once the excitement of the Husband’s affair wears off. Of course, Husband’s attorney was being directed by her client to move the divorce along expeditiously. Issue: What obligation, if any, does an attorney have to foot-drag a case in order to provide time for reconciliation attempts? Solution: An attorney’s obligation is to represent the interests of his or her client. That ethical obligation is not changed by being in the collaborative process. With the Wife’s consent, her attorney may choose to raise this possibility with other team members outside of the joint sessions. But doing so does not prevent the Husband’s attorney from relaying Wife’s belief to the Husband. Because this case involved a sizeable estate, but one that will have to be liquidated to provide each older party to live independently in later life, there may arguably be disastrous consequences if the case proceeds at break-neck speed to that conclusion. The attorneys must balance their own client’s directives with what may truly develop into a situation of reconciliation. Interestingly enough, as the collaborative case proceeded, the Husband seemed slow to complete his assigned tasks and did not act in accordance with his instructions to his attorney to “get


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this divorce over with.” He began foot-dragging, as well. The case which sparked this hypothetical situation just resolved – by way of reconciliation. Months have passed since a joint session because the Husband and Wife have neither instructed attorneys to light a fire under the collaborative process. The collaborative team was comprised of experienced collaborative professionals who were willing to take a wait-and-see attitude and not to rush what turned out to be another late-life near-miss divorce. G. Older Clients #2 Facts: Husband and Wife, both in their middle 60’s enter into the collaborative process with a full interdisciplinary team. They have been married for over 40 years. The Husband wants more “independence” and both say there are no paramours. Husband is a traveling salesman and spends a lot of time on the road. Wife has always been a “stay-at-home Mom” and takes care of all the family finances. Needless to say, all of their children are grown and out of the nest. Husband began receiving social security payments in April, and Wife will begin to draw it soon. Husband is unusually meek and not sophisticated in financial matters while Wife is assertive and financially knowledgeable, though she has not been in the job market for many years. The marital estate of $1,800,000 is highly illiquid and consists of real estate, ($616,184) and closely held business interests ($574,000). A 401 (k) retirement account totals $300,000. The majority of the balance of the estate is held in locally owned bank stock which, in itself, is illiquid and subject to buy-sell agreements with the other shareholders. Husband has a significant separate property claim with respect to the local bank stock and approximately 8% of the closely held family business interests, but has yet to assert it. The couple has been in the collaborative process since November, 2006 and they are currently in a holding pattern. Issues: Husband has a difficult time making decisions and Wife does not want the divorce. At the present time, the couple says they are talking to various realtors about selling some of the real estate, but there are subtle signs of possible reconciliation. Should the team take the lead in moving the case forward, or wait on the clients to signal for another meeting? If the case heats back up and, assuming the real estate is sold for cash, should all the proceeds go to Wife, along with a portion of the 401 (k) with Husband receiving the illiquid assets, many of which are tied in to his family?

Query: What difference would it make if the couple were in their early 40’s? Would a different division of the estate be appropriate? Solution: In either case, it makes more sense for Husband to keep the closely held businesses since most of them are his separate property and do not generate much in the way of income. They do have some upside potential, but are subject to control by Husband’s family. Wife would receive the real estate with potential appreciation and enough of the 401 (k) that, together with her social security benefits, would allow her to remain in the home until she deemed it prudent to sell. For a younger couple, it may be more advisable that the real estate be sold, the proceeds divided, and the Wife awarded more of the 401 (k). By doing so, the Wife and Husband could each replace the home and have retirement funds that would be working tax free for the next 25 years. VIII. CONCLUSION These case scenarios illustrate the need to refresh our knowledge of the Texas Disciplinary Rules of Professional Conduct, contract law, the protocols for Collaborative Law practice, Collaborative Law forms, negotiation skills, and everything we have ever learned. The authors of the 2007 version of this resource paper request that you, the reader, share your Lessons Learned and Solutions Found through your collaborative practices. If you take issue with a solution offered in this paper, notify the editor and offer your reasoning and authority. If you have a situation that deserves inclusion and discussion in a future edition of this paper, notify the editor with your case scenario. We all stand to learn from each other.