THE PROTOCOLS AND THE PARTICIPATION AGREEMENT BASIC

THE PROTOCOLS AND THE PARTICIPATION AGREEMENT BASIC ETHICAL QUESTIONS

CARLA M. CALABRESE WINIFRED HUFF Calabrese Huff, PC

5944 Luther Lane, Suite 875 Dallas, Texas 75225

(214) 939-3000 (214) 939-3001/Facsimile [email protected]

[email protected]

State Bar of Texas COLLABORATIVE LAW 101 COURSE

March 9, 2011 Dallas

CHAPTER 10

Carla M. Calabrese, Condensed Vitae Page 1 of 2

CARLA M. CALABRESE CALABRESE HUFF, PC

5944 Luther Lane, Suite 875 630 E. Southlake Blvd. Suite 53 Dallas, Texas 75225 Southlake, Texas 76092 214. 939. 3000 817.349.2000

www.calabresehuff.com [email protected]

CONDENSED VITAE

EDUCATION J.D. with honors, 1986, University of Cincinnati College of Law B.S.B.A., Magna Cum Laude, 1982, Bowling Green State University

PROFESSIONAL MEMBERSHIPS, HONORS AND ACTIVITIES “Best Lawyers in America”, Family Law, 2008, 2009, 2010, 2011 “Best Lawyers in America”, Collaborative Family Law, 2008, 2009, 2010, 2011 “The Best Women Lawyers in Dallas”, D Magazine, 2010 “Best Lawyers in Dallas”, D Magazine, 2003, 2007, 2008 “Top 50 Women Lawyers in Texas”, Texas Monthly, 2004, 2006 “Texas Super Lawyer” Texas Monthly, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010 Named by Collaborative Law Institute of Texas peers as one of 5 Exceptional

Collaborative Practitioners in Texas, 2009 Named by Collaborative Law Institute of Texas peers as one of 5 Collaborative

Practitioners in Texas Making a Difference in the Collaborative Law Community, 2009 Collaborative Law Institute of Texas, Charter Member & Protocols Committee Member

(Drafts statewide protocols and forms) International Academy of Collaborative Professionals The Collaborative Alliance, Dallas collaborative divorce practice group American Academy of Adoption Attorneys American Academy of Assisted Reproductive Technology Attorneys Texas Academy of Adoption Attorneys, Founding Member Recognition in Strathmore’s Who’s Who 2003-2004 Edition

RECENT PUBLICATIONS, LECTURES & AUTHORSHIPS Collaborative Law – Ethical Considerations, The Collaborative Law Institute of Texas

and State Bar of Texas Collaborative Law Course, 2011 Ask the Experts – Collaborative Family Law, D Magazine, January 2011 “How to Protect Your Clients and Their Net Worth During Divorce – A Process That

Every Top-Notch Financial Professional Should Know About”, presented to Tolleson Wealth Management, October 2010.

“Cracking the Mental Health Code: Helping Lawyers Spot (and Understand the Impact of) Mental Health Issues”, The Collaborative Law Institute of Texas and State Bar of Texas Collaborative Law Course, 2010

Collaborative Law Primer – Presented to Andrews & Barth, March 2010 “Introduction to Collaborative Law – Dissecting the Case from Hell”, presented to Plano

Bar Association, October 2009 “Case Study From Hell”, The Collaborative Law Institute of Texas and State Bar of

Texas Collaborative Law Course, 2009 “The Collaborative Team Model, Learn It, Do It, Love it!”, Texas State Bar


Advanced Family Law Seminar, 2007 “Why Aren’t Those Lawyers Going to Court”, presented to 100 lawyers at the Mahon

Inns of Court, Fort Worth, Texas 2006 “The Collaborative Team Model, Taking Texas to the Next Level”, Texas State Bar

Advanced Family Law Seminar, 2005 “Introduction to Collaboration in the Practice of Law”, Dallas Bar Association ADR

Section, 2004 “Top Ten Reasons to Choose Collaborative Law”, Vial, Hamilton, Koch & Knox, 2003 “Introduction to Collaborative Law”, Dallas Group Analytical Practice, 2003 “Protocols for the Practice of Collaborative Family Law”, Adopted by the Collaborative

Law Institute of Texas, Co-Authored with the Collaborative Law Institute of Texas Protocols Committee, 2003 - present

“How to Sell Collaborative Law”, Dallas Collaborative Law Group, 2002 “Collaborative Law – A New Way to Practice Family Law” Instructor, Law Awareness

Course, The Hockaday School, 2003 “Top Ten Reasons to Choose Collaborative Law”, Haynes & Boone, LLP, 2002 Scriptwriter & Participant, Children in the Middle, AT&T Cable Program, Role-playing

Collaborative Law Case, 2 episodes, 2002

PREVIOUS EMPLOYMENT Haynes & Boone, LLP, Commercial Litigation Lawyer, 1986 – 1991 Xerox Corporation, Industrial Buyer, 1982 – 1983 (left to attend law school)


WINIFRED HUFF [email protected] Calabrese Huff, PC www.calabresehuff.com 5944 Luther Lane 630 E. Southlake Blvd. Suite 875 Suite 53 Dallas, Texas 75225 Southlake, Texas 76092 214.939.3000 817.349.2000

Education and Selected Training: University of Texas School of Law, J.D., with honors, 1985 Collaborative Law Negotiating Workshop with Chip Rose, January 2004 IACP Collaborative Skills Institute, June 2005 Interdisciplinary Collaborative Law Training, October 2005 High Conflict Institute for Family Law Professionals, with Bill Eddy, Spring 2007 Strauss Institute Advanced Collaborative Training, Pepperdine, June 2008 IACP Collaborative Seminar, October 2008 The Art of Powerful Non Defensive Communication, Sharon Ellison, 2008

IACP Collaborative Seminar, October 2009 Advanced Collaborative Training, with Pauline Tessler, January 2010 Professional Memberships and Associations:

Collaborative Law Institute of Texas, Member & Protocols Committee Member (Drafts statewide protocols and forms) International Academy of Collaborative Professionals Collaborative Law Dallas (Past-President) North East Collaborative Professionals ABA: Family Law Section/Assisted Reproductive Technologies and Adoption American Society of Reproductive Medicine Egg Donation and Surrogacy Professional Association “Best Lawyers”, Fort Worth Magazine, 2009

Publications and Presentations:

Collaborative Law – Ethical Considerations, The Collaborative Law Institute of Texas and State Bar of Texas Collaborative Law Course, 2011 Ask the Experts – Collaborative Family Law, D Magazine, January 2011 Collaborative Law Primer – Presented to Andrews & Barth, March 2010 Collaborative Law Institute of Texas and State Bar of Texas Collaborative Law Course, 2010 “Cracking the Mental Health Code: Helping Lawyers Spot (and Understand the Impact of) Mental Health Issues”, co-authored with Carla Calabrese and Honey Sheff, The “Roadblocks to the Roadmap”, co-authored with Scott Clarke Patrick Savage and Jody Johnson, International Association of Collaborative Professionals, Fall, 2008 “Roadblocks to the Roadmap”, co-authored with Scott Clarke and Linda Solomon, Collaborative Law Spring Conference, 2008 “Why Aren’t Those Lawyers Going to Court”, presented to the Mahon Inns of Court, Fort Worth, Texas 2006


“The Collaborative Team Model, Taking Texas to the Next Level”, co-authored with Carla Calabrese, Texas State Bar Advanced Family Law Seminar, 2005

Previous Employment:

Haynes & Boone, 1988-1991, Dallas, Texas, General Litigation Hughes & Luce, 1986-1988, Dallas, Texas, Banking and Real Estate Fulbright and Jaworski, 1985, Washington, D.C., Administrative Law

The Protocols and the Participation Agreement Basic Ethical Questions Chapter 10

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TABLE OF CONTENTS

SEXY WAKE-UP TITLE ............................................................................................................................................... 1

OLD ETHICS. NEW LAW ............................................................................................................................................ 2

ETHICAL “HOT” TOPICS ............................................................................................................................................ 2

INFORMED CONSENT/WITHDRAWAL REQUIREMENT – ETHICAL CONSIDERATIONS ............................. 3

ETHICS AND THE COLORADO SCARE ................................................................................................................... 3

HOW COLORADO GOT THERE? ............................................................................................................................... 4

THE ABA QUICKLY “SAVES THE DAY”: COLLABORATIVE LAW IS ETHICAL ............................................. 5

INFORMED CONSENT: WHAT IS REQUIRED NOW? ............................................................................................ 6

THE FUTURE OF INFORMED CONSENT? ............................................................................................................... 7

INFORMED CONSENT – SHOULD IT BE IN WRITING? ........................................................................................ 8

COOPERATIVE LAW – ANOTHER ETHICAL DILEMMA? .................................................................................... 8

MABRAY’S STRONG DISSENT: NO! .......................................................................................................................... 9

AVOID EXPOSURE ...................................................................................................................................................... 9

ATTACHMENTS Collaborative Law Disclosure Statement .............................................................................................................. 11 Cleveland Academy of Collaborative Professionals – Acknowledgment of Informed Consent ........................... 13

The Protocols and the Participation Agreement – Basic Ethical Questions

Presented byCarla M. Calabrese & Winifred B. Huff

Sexy Wake-Up Title

Ethics is NOT Like Pornography You Don’t Ethics is NOT Like Pornography – You Don t Know it When You See it.


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Old Ethics. New Law.

Collaborative law is cutting edge law and still Collaborative law is cutting-edge law and still evolving; it has not been tested through the court system.

We do things differently in collaborative law. Where to look for help:

P t l f P ti f C ll b ti F il Protocols of Practice for Collaborative Family Lawyers

Texas Collaborative Law statute, TFC § 6.603 Uniform Collaborative Law Act (UCLA)

Ethical “Hot” Topics

Informed consent Informed consent Withdrawal Cooperative law


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Informed Consent/ Withdrawal Requirement - Ethical Considerations

Withdrawal required for valid collaborative Withdrawal required for valid collaborative agreement.

The concept of informed consent has morphed over time, as seen in the 2007 Colorado and ABA ethics opinions and the Uniform Collaborative Law Act.Uniform Collaborative Law Act.

The focus has shifted From: 2007 - Colorado Ethics Opinion/ABA Opinion To: 2010 - Uniform Collaborative Law Act

Ethics and The Colorado Scare

In 2007, the Colorado Bar Ethics Committee said the mandatory withdrawal provision violated Colorado pconflict of interest rules and was unethical.


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How Colorado Got There?

How Colorado Got There?

The withdrawal provision of the collaborative The withdrawal provision of the collaborative law participation agreement creates an obligation to a third party which adversely affects the client.

Client cannot waive potential conflict because the chance of conflict is significantthe chance of conflict is significant.

Conflict not reconciled by another lawyer representing the client.


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The ABA Quickly “Saves the Day”: Collaborative Law is Ethical

The ABA Quickly “Saves the Day”: Collaborative Law is Ethical

Collaborative Law is permissible as limited Collaborative Law is permissible as limited scope representation if the client gives informed consent.

It does not create a conflict that cannot be waived under Rule 1.7(a)(2).

The ABA recognized the importance of options and the client’s freedom of choice when selecting legal services.


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Colorado Lawyers Still Collaborating

Informed Consent: What is Required Now ABA ABA

Provide adequate information about risks and alternatives. Ensure client understands withdrawal requirement.

Texas Protocols of Practice 2.01 (Informing the Client) The collaborative lawyer should inform each prospective

family law client about all legal alternatives for resolving the client’s matter including collaborative lawclient s matter, including collaborative law.

These alternatives should be explained in terms of process, risk, harm, privacy, delay, and cost.

Interestingly, the Texas statute is silent regarding informed consent.


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The Future of Informed Consent?

Uniform Collaborative Law Act 2010 Uniform Collaborative Law Act 2010 (UCLA) Expands the concept of informed consent -

lawyer to assess appropriateness of the collaborative process.

In domestic violence case, lawyer must assess and guarantee safetyassess and guarantee safety.

Essentially lawyer substituting her judgment for the client’s.

The Future of Informed Consent in Texas?

Texas bill in response to the UCLA Texas bill in response to the UCLA Expands the concept of informed consent

to provide lawyer assessment with client input.

Does not include coercion in the definition of domestic violence.Lawyer not required to guarantee safety of Lawyer not required to guarantee safety of client.

UCLA not yet the law in Texas.


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Informed Consent – Should it be in Writing?

No formal requirement to have No formal requirement to have informed consent in writing. UCLA commentary contemplates that

lawyers will be obtaining written informed consent from clients.

Best practice: written informed consent Best practice: written informed consent, signed by client.

Cooperative Law – Another Ethical Dilemma?

Is cooperative law ethical? Is cooperative law ethical? Yes, under In re Mabray, in 2010.

The collaborative law statute does not exclude the use of cooperative agreements.

None of the ADR statutory provisions are exclusive. T bli li f l d Texas public policy encourages peaceful and early settlement of disputes without litigation, and permits the use of cooperative law.


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Mabray’s Strong Dissent: No!

Cooperative law is not ethical Cooperative law is not ethical. Illegal contract and void

because it doesn’t follow the collaborative law statute.

The parties’ agreement expressly contravened theexpressly contravened the Texas collaborative law statute’s protections while taking advantage of it’s benefits.

Avoid Exposure

Clearly outline withdrawal requirement Clearly outline withdrawal requirement Fee Agreement Informed consent document Participation Agreement

Clearly outline risks and alternatives Detailed conversation with client Informed consent document

Think twice about cooperative law before exposing your client (and yourself).


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Avoid Exposure


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Collaborative Law Disclosure Statement (Rev. 2/07) © Collaborative Law Institute of Texas, Inc. 2006

COLLABORATIVE LAW DISCLOSURE STATEMENT

Should you choose to participate in the collaborative law process, you and the other party would each have an attorney and a shared commitment to avoid litigation. The collaborative law process involves informal discussions and joint meetings for purposes of settling issues. The participants agree to be honest and mutually respectful. Both parties and counsel commit to resolving differences without resort to court proceedings. The collaborative law process utilizes informal exchange of financial information and may involve jointly engaged neutral professionals. The parties will be assigned tasks to assist in the process. Parenting plans, allocating parental responsibilities and parenting time with children are jointly worked out by parents with the goal of serving the best interests of the family. The parties use their best efforts to arrive at solutions that address the parties’ fundamental interests (needs, values, concerns, and priorities) in order to reach an acceptable settlement. If the matter cannot settle through the collaborative law process, the collaborative lawyers must withdraw.

CONSIDERATIONS WHEN DECIDING WHETHER TO PARTICIPATE IN THE COLLABORATIVE LAW PROCESS

The following may be advantages of the collaborative law process:

Collaborative law contemplates a series of meetings to gather information, to develop and evaluate options, and to allow each party time to make informed decisions. During these meetings, the parties will have the comfort of professional advice and guidance from their respective collaborative lawyers.

The collaborative law process preserves privacy by not airing differences in a public forum. Most settlement terms and financial disclosures can be kept from the public record.

The parties retain control over the outcome. Collaborative settlements are more sustainable over time and invite more consistent compliance than do court-ordered mandates.

The collaborative law process helps parents develop and preserve a cooperative relationship that will benefit their children as they go about the task of co-parenting.

The inevitable increase in hostility and conflict that results from adversarial litigation emotionally damages litigants’ children. The collaborative law process is designed to minimize post-divorce conflict.

Extended family relationships and friendships are more likely to be preserved in the collaborative law process.

The collaborative law process can level the playing field by having all fees paid from community or separate funds or otherwise allocated in an acceptable manner.

The collaborative law process requires the professionals and parties to explore options that address the interests of both parties and their child(ren), rather than take tactical positions to obtain an advantage.

The collaborative law process encourages creative solutions to meet the parties’ needs, which may differ from what the court would decide.

Everyone has an economic incentive to work toward settlement – the parties because of the high cost of litigation and the lawyers because they will be required to withdraw if settlement cannot be achieved.

The collaborative law process is confidential. Litigation is public. The team approach is one of the major benefits of the collaborative law process. The process

allows the parties to jointly engage neutral professionals to help them resolve their differences and improve their communication.


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Collaborative Law Disclosure Statement (Rev. 2/07) © Collaborative Law Institute of Texas, Inc. 2006

The following could be disadvantages of the collaborative law process: If the matter is not resolved and litigation counsel is retained, there may be some duplication

of effort as the second lawyer catches up. Should trial be necessary, trial preparation will have been delayed and important evidence

may be unavailable. Court-ordered mechanisms to compel production of information are not available. Emergency, pre-emptive relief (e.g, a restraining order) regarding property and children may

not be available. Neutral experts retained during the collaborative law process may not be allowed to

participate if the case does not settle. You might need to hire and pay for additional experts to support your position in court.

The following are other considerations relating to the collaborative law process: The collaborative law process is not appropriate when punitive action is sought, such as

contempt proceedings to enforce prior orders. The collaborative law process may not be appropriate if an acceptable level of trust is

lacking. The collaborative law process prohibits taking tactical advantage of another’s mistakes,

oversights, and misinformation. Litigation sometimes allows the litigant with the less meritorious case to prevail.

Protective orders in family violence cases are not obtained in the collaborative law process. The collaborative law process is not suitable if a party feels threatened, intimidated, or in an

unequal bargaining position even with the assistance of counsel. No one who feels coerced into participating in the collaborative law process should agree to

it. If parties feel compelled to vindicate and defend themselves from accusations of wrong-doing

or to expose the wrong-doing of another, the privacy of the collaborative law process may not be satisfying.

If the dispute requires the judicial determination of a preliminary question of law or fact upon which all the negotiations depend, the collaborative law process may be premature.

The collaborative law process contemplates the collaborative professional team’s ability to communicate confidentially without informing or copying the parties so that the team can work together to attain the goal of reaching an acceptable settlement.

If a party desires to conceal certain information that could affect the outcome of the case, the collaborative law process is inappropriate. The parties are required to share all relevant information and documents in the collaborative law process. Concealment is not tolerated. In litigation, if properly requested, all relevant information must be disclosed as well.

It is ultimately your decision whether or not to engage in the collaborative law process.


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CLEVELAND ACADEMY OF COLLABORATIVE PROFESSIONALS

ACKNOWLEDGMENT OF INFORMED CONSENT

As an attorney who is a member of the Cleveland Academy of Collaborative Professionals, I am committed to sharing with you the various adversarial and non-adversarial options now available to you, along with pointing out the possible drawbacks and benefits of each process option. There are three ADVERSARIAL approaches or processes. They are:

I LITIGATION

A. Possible benefits may include: 1. The court can issue temporary orders restraining, among other things, the wrongful dissipation of assets,

generally on an immediate basis. 2. The court can issue other temporary orders, regarding matters such as parenting rights and support

obligations, although such orders may take weeks or months. 3. The court can enforce the discovery of necessary information and may impose sanctions for failure to

comply with the discovery process. 4. If any issues are not ultimately settled, the court will hear evidence at a trial, apply the law as prescribed,

and then make a decision disposing of all remaining disputes.

B. Possible drawbacks may include: 1. Adversarial process, in a non-private forum, and position-based bargaining greatly increases relational costs

(i.e., increased likelihood of long-term impairment of the parties= ability to directly communicate and interact with each other in a dignified, effective manner).

2. Increased conflict between the parties increases the negative impact upon their children. 3. The parties cede control in favor of the court making decisions for them, which decisions are necessarily

made from a more limited, non-customized set of options, after consideration of only the information that is admissible under technical rules of evidence, and often neither party emerges as a clear winner.

4. The time consumed by, and resulting legal fees involved in, pursuing formal discovery proceedings, temporary order contests, trial and possible appellate court proceedings can take a substantial toll, emotionally and financially, upon both parties.

II ARBITRATION

A. Possible benefits may include: 1. Unlike litigation, a third party lawyer is selected and hired to act as a private judge, so that the case can be

heard in a private forum and on a time schedule determined by the parties. 2. The scope of an arbitrator=s powers and role is determined by the parties= agreement to utilize arbitration.

B. Possible drawbacks may include:

1. Parenting disputes and child support amounts cannot be absolutely determined by an arbitrator, meaning that court intervention will still be required on these issues if they are not settled by agreement.

2. Arbitration utilizes the adversarial process, like litigation, and therefore many of the same risks of litigation (increased relational costs, ceding control over decision-making, etc.) still apply.

III LAWYER NEGOTIATION (Sometimes alternately referred to as “Structured,” “Principled,” and “Cooperative” Negotiations)

A. Possible benefits may include: 1. Lawyers may use interest-based negotiation, and may choose to cooperate on discovery matters, through

negotiations that can take place either in four-way meetings or between the lawyers. 2. Unlike a collaborative process, the lawyers are not retained for a limited purpose and each party can keep her

or his same counsel to litigate unresolved issues.

B. Possible drawbacks may include: 1. Unlike mediation or a collaborative process, protocols and processes are not as clearly defined, decreasing

the likelihood of resolution and increasing the likelihood that a party will resort to litigation. 2. The possibility that the lawyers may at some point be adversaries in litigation can negatively impact the

level of trust that may be necessary to resolve issues (especially in an interest-based negotiation) because, like in litigation, the attorneys are still simultaneously pursuing settlement and preparing for trial.


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There are two NON-ADVERSARIAL approaches or processes. They are: IV MEDIATION

A. Possible benefits may include: 1. A third party neutral facilitates resolution by direct, face-to-face negotiations between the parties. 2. Parties retain control over decision making so that each party=s needs and interests, along with a wider

variety of options, are generally given consideration, not just the evidence and the law as in adversarial processes such as litigation or arbitration.

3. As opposed to litigation or arbitration, it is a process that can more effectively address the interpersonal issues that can obstruct resolution.


1. The neutral mediator cannot individually counsel either party or do much to level unequal bargaining positions between parties.

2. The neutral mediator is limited in his/her ability to facilitate the discovery of necessary information in the face of one party=s obstructive behavior, and is ethically prohibited from preparing the final agreements and other legal paperwork.

3. Since the parties’ lawyers generally do not participate directly in the negotiations, the lawyers remain unaligned with the process, resulting in a greater risk that the mediated agreement may be scuttled when each party receives her or his lawyer=s critique.

V COLLABORATIVE PROCESS

A. Possible benefits may include: 1. Interest-based negotiations are utilized, similar to mediation, promoting the parties= long-term ability to

effectively communicate and minimizing the negative impact upon children from the conflict. 2. All information is voluntarily and transparently shared fully in a private forum, on request of either party,

and all negotiations take place directly, face-to-face, in Afour-way@ meetings in which an environment of trust is promoted by the knowledge that the other spouse=s attorney will not some day be an adversary.

3. Each of the lawyers is retained for only the limited purpose of helping her or his client reach an acceptable settlement on all issues, without litigation or threatening to litigate.


1. Like mediation and principled negotiation, each side has the unilateral right to terminate the process at any time and force the other party into litigation.

2. Unlike mediation or principled negotiation, if the collaborative process fails, neither lawyer can continue to represent her or his client and each client must retain new counsel for litigation, with the likely effect that some or perhaps all the legal fees expended upon the collaborative process were for naught.

3. Each party may reach a point where she or he feels that there is no choice but to settle because of the investment she or he has already made in the process.

I have reviewed the alternatives available to me with my attorney.

_______________________________________ CLIENT Date

________________________________________ ATTORNEY


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Documents

THE PROTOCOLS AND THE PARTICIPATION AGREEMENT BASIC