by Jeff Fink, Past President of MCLC
We don’t always think about ethics in our daily lives. Many lawyers remember legal ethics as one of the less interesting topics on the bar exam.
In the Collaborative process, though, ethics are important. They mean “doing the right thing” in the situation. They mean always asking ourselves, “Am I being Collaborative? Is what I am doing now Collaborative?”
The umbrella organization for Collaborative practice, the International Academy of Collaborative Professionals (IACP), has published a set of ethical guidelines for practitioners. These guidelines overlap with professional responsibility rules that apply to lawyers and other professionals in the process in a way that provides direction to the Collaborative process but, in accordance with Ethical Standard 1.1, do not supersede the general rules of the professions. One of the key guidelines is Ethical Standard 5.5, which states, “A Collaborative practitioner shall avoid contributing to the conflict of the client(s).” It sounds good: if the professionals are part of the solution rather than part of the problem, it moves the process forward. However, on second look it becomes clear that we cannot – in fact, should not – follow this Standard exactly as written.
Clients bring lawyers and neutrals into a case in order to obtain advice and information, to place their dispute within a legal and factual context that helps them make better choices about how to resolve it. If a professional avoids giving accurate advice to avoid contributing to client conflict, it violates broader professional responsibility rules and could even expose the professional to a malpractice claim. The problem is that every bit of advice the Collaborative lawyer gives – and a conversation about legal rights plays a significant role in most clients’ minds – affects the clients’ view of the dispute. Every bit of information that a neutral provides does the same, whether it is about finance, law or some other subject. Even in an interest-based negotiation, even if presented in the most non-confrontational way, the advice that lawyers and neutrals provide effectively tells the parties:
Regardless of what you may want, here are the facts. Regardless of what you personally think is fair, the norms of our society as written into the law would likely put you in a particular position if a judge decided the matter. Regardless of what you or the other party may want, here is where the facts and the law would lead you if you took them to a third party decision maker.
Can those conclusions cause parties to advocate for their rights and thereby add to their conflict? Of course, but we should remember that client self-determination is an important element of Collaborative Practice. The parties are choosing a Collaborative process so they can make their own decisions rather than relying on a judge. At the same time they are seeking not to let conflict spiral out of control. To balance these competing goals, the Collaborative practitioner should go on to say:
But it’s up to you what to do with this information. Is it in your best interest to step back from a strict reading of your rights in order to get a whole package that works better for you?
In other words, a more realistic guideline might read,
A Collaborative practitioner should advise a client accurately of his or her opinion of the parties’ legal rights and factual matters, but should seek to do so in the context of negotiation based on the actual interests of the parties rather than advocating for a particular position, the hardening of a position or increased confrontation.
The consensus on ethical Collaborative Practice is constantly evolving. In fact, the IACP is in the process of revising its ethical standards now. In this complex and challenging practice, it is worth paying attention to ongoing developments in what it means to be Collaborative.