State Bar Complaint Against Collaborative Lawyers
In the aftermath of the Author's case, a complaint was filed in October 2007 (and rebutted in February 2008) against the attorneys involved to request action be taken to sanction them for violating basic lawyer-client confidentiality and for violating the collaborative agreements to which they were bound (with the clients). This page discussed the bar complaint.
In the Pitfalls page, there is this section, added after the site was launched and repeated here for convenience:
Confidentiality: Have it or not?
"It is very unclear when reading about CL whether the clients give up lawyer-client confidentiality or not. There seems to be published writings saying both, and the collaborative contract itself only has nebulous language about "honest and open" disclosure of information pertinent to resolving the case. Does this mean all information or only that material to a settlement (mainly financial information)? The Author realized that private conversations were being relayed to the other side in his case, and started marking all emails as CONFIDENTIAL. But it is interesting to note how many opinions seem to co-exist about it. It is the opinion of this site (see Links page too) that collaborative attorneys must follow the basic rules of conduct and this was reinforced by an ABA opinion issued in Aug 2007. As such, the lawyer must obtain permission before sharing information with the other side. If the client is witholding relevant material information required for an honest settlement (e.g. hiding assets), the collaborative attorney may withdraw.
If you're not sure what your rights are, ask your collaborative attorney (or all potential ones) to explain it and then be sure it is in writing and understood by ALL four parties before proceeding at all! If that still does not work, bail out as soon as possible to cut losses, anc complain to the State Bar about that attorney."
Well, it looks like complaining to the State Bar (of California at least) will not do much good since the confusion exists there too. I've been told by several sources that the Rules of Professional Conduct do not vanish in collaborative cases, and that the attorneys must keep client converstations confidential! And yet when the complaint was filed with the Bar, the first dismissal letter contained the following language:
" It appears that the Collaborative Law divorce process requires honest disclosure. If you didn't want to go through the process and to have honest disclosure of all information pertinent to resolving the issues, you could have made the choice, to stop participation, as indicated by your attorney. There is insufficient evidence that Mr. Seltzer's actions constitute a violation."
This is all based on one sentence in the Principles and Guidelines in section 2.01: "The parties agree to give complete, full, honest and open disclosure of all information having a material bearing on the case, whether requested or not, and to engage in informal discussions and conferences for the purpose of reaching a resolution of all issues."
Open and honest disclosure of material information for the settlement, such as financial disclosures, etc. was not the problem. The problem was when the lawyers would share confidential conversations with us, the clients. If you can't expect your own lawyer to keep your conversations confidential, the integrity of the case falls out. Additionally, when the case becomes contentious, it is a serious breach of representation of the client's interests to reveal secret conversations! The collaborative contract even states the requirement to advocate for the client, so how is it that the Bar came down on this one sentence allowing your lawyer to repeat anything and everything you say??
Finally, the Bar blames the victim, by stating that the Author could have dropped out - after months and months of "process"and thousands of dollars in fees. Don't you think they should have a little more empathy towards the client?
It is interesting to note that in a collaborative law divorce, the attorneys and clients enter into a four-way contract by signing the Principles and Guidelines and Stipulation Order at the start. This would appear to bind them more closely to the clients and the process than a typical engagement letter (also signed) to represent a client in a case. This is a key point in the Author's complaint, since the attorney's, especially Pauline Tesler, deviated so far and so clearly from what was agreed to in those contracts. A simple example is Tesler refusing to make a correction to a mistake discovered in the property settlement late in the case. The contract states clearly that neither side shall take advantage of such mistakes and correct them readily.
One might get the impression that the process is more closely regulated by the existence of such contracts and that the lawyers are on the hook to follow them. The problem is twofold: the wording of the contracts gives the lawyers a lot of leighway in the process and control of the process, and vague language makes it too easy to cover their tracks of violations. Secondly, the State Bar does not seem to recognize the content of the contracts very clearly. They sided with the attorneys in the Author's case, which has too many violations of the contracts to count...
The Collaborative Law Divorce process and contracts are for lawyers, created by lawyers and appear more like the Wild West to a trained eye. They will not protect the client from abuses such as those in the Author's case, and the State Bar leaves no recourse either. CL IS IN GREAT NEED OF REFORM AND REGULATION!
To Read the actual letter (rebuttal) to the State Bar for the Author's case, click the link below (PDF reader required):
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