© 2009 E. J. Kates
The Collaborative Practice Group -- or Independent Collaborative Lawyer?
Independent Collaborative Lawyer?
by Elizabeth J. Kates, Esq.
Collaborative Law practice groups have been forming around the country over the past two decades. They are not law firms. Some are incorporated as nonprofit associations, and some are not. Some may be composed of only lawyer and/or law firm members, while others are interdisciplinary groups of lawyers and other professionals, such as mental health or financial professionals. Different groups may have slightly different flavors. There are different requirements for membership and continuing training, and different groups advocate for somewhat different kinds of collaborative practice. One thing all collaborative lawyers and collaborative law groups have in common, however, is a commitment to resolving disputes using the collaborative process without having to go to court. Thus, a trained collaborative lawyer may be part of a large or small practice group, or belong to multiple groups -- or might not be affiliated with a group at all.
Collaborative law groups primarily exist to educate and to provide a forum in which lawyers can share information and ideas to assist them when representing clients in a collaborative case. They facilitate the training of members, advance knowledge about the collaborative process, and help to standardize the practices and procedures of lawyers who will be working with each other in the future. By meeting together regularly, and discussing the various issues, the collaborative law groups help to develop the skills and practices of local lawyers who are serving clients in the still-emerging and developing area of collaborative law. Members also sometimes collectively advise legislatures and the media on the collaborative process. In addition to facilitating the development of the emerging field, collaborative lawyers in practice groups find it helpful for trust and efficiency when the lawyers who will be working to resolve issues in a collaborative manner have been able to get to know each other in a setting other than interacting with clients.
Recently collaborative law groups have begun expanding from practices limited to handling family law issues to other kinds of issues as well, such as probate and elder law disputes or business partnership disputes. More and more collaborative lawyers have practices that are not limited to family law. (We had this in mind when we decided to call ourselves -- simply -- "Collaborative Lawyers", rather than "Collaborative Family Lawyers", or "Collaborative Divorce Lawyers".)
Some collaborative lawyers offer a full range of traditional legal services, such as litigation and mediation, as well as transactional work, and some, such as Stu Webb, the originator of collaborative law in the early 90s, have chosen to limit their practices solely to resolving disputes using a collaborative process. Importantly, however, as the field has developed, some lawyers have joined multiple collaborative law groups, while other lawyers who are equally trained as collaborative lawyers and both interested in and committed to using collaborative law (as well as, sometimes, cooperative law), are finding membership in collaborative groups to be limiting, and to have some disadvantages as well as advantages.
Our lawyer directories, e.g. Collaborative Lawyers of Southeast Florida (in the South Florida area) are nondiscriminatory listings of collaborative lawyers. We consider a lawyer who is trained in collaborative law, and who is committed to using collaborative law when it is appropriate to be a "collaborative lawyer". We welcome here lawyers and law firms associated with collaborative law groups as well as unaffiliated collaborative lawyers. Our purpose is to provide a place for lawyers, clients, and other professionals to find each other, network, share information, and spread the practice of collaborative law. We believe that many would do more networking if unburdened from the requirement that they be members of a practice group, usually a corporation, and implicitly responsible for or professionally endorsing each other individual member of the group. Because of this issue, some of the collaborative law groups seem overly restrictive in who they will admit as members and work with, while others have become more akin to trade promotion organizations, permitting almost anyone, lawyer or not, to be considered a "member" and "collaborative practitioner". We understand that some collaborative lawyers may have concerns with the notion of restricting practice relationships and restricting which other lawyers and professionals they will work with, while on the other side, others are concerned about the implicit legal responsibilities of formal membership in unrestricted interdisciplinary practice groups. We appreciate and recognize the contributions that have been made by formal collaborative law groups, and toward a resolution of this dilemma, also appreciate and recognize that a lawyer does not have to belong to a formally organized collaborative group -- of any flavor -- in order to be and be considered as a "collaborative lawyer".
All collaborative lawyers, indeed all lawyers, collaborative or not, work with other professionals of many different kinds, often as part of a "team". So we also welcome on our site other professionals and experts as well as lawyers, albeit not as "practitioners of collaborative law". That's because we also firmly believe that collaborative law still is the practice of law. It's not merely "collaborative practice" or "collaborative dispute resolution". It's not a non-legal or extra-legal method of resolving disagreements. We believe that one of the strengths of collaborative law is that parties in a dispute are represented by independent attorneys. Unlike mediation, in which the parties may or may not have a lawyer, and in which the mediator cannot give legal advice, collaborative law offers the advantage of having a legal advocate and advisor at one's side.
Additionally, we believe in flexibility and creativity, staying true to the original precepts of collaborative law as envisioned by the founder of the process. When needed or desirable, the clients of all collaborative lawyers mutually may hire additional non-legal professionals, such as therapists, mediators, coaches, forensic accountants or appraisers to work as part of the collaborative team. This process is not entirely different from what is done by lawyers who belong to interdisciplinary collaborative groups. It's just that some collaborative lawyers do not make assumptions in advance about what any family may or may not need, or who they should hire. Rather, they decide what professionals would be helpful to reaching a resolution when it appears that there will be a need for them. It's done at the point that the parties and their attorneys have determined that it would be in the clients' interests to seek additional information or assistance. (The author of this article respects the arguments about the usefulness of having a pre-existing "team" in place, but feels that on balance, the customized approach is more client-centered, and preferable.)
Finally, while all collaborative lawyers are trained in resolving disputes using the collaborative process and are committed to the practice of collaborative law, not all collaborative lawyers limit their legal practices to collaborative law. Whether or not a lawyer limits his or her practice to collaborative law is not an indicator by itself of skill or of a "good match" for the client. First and foremost, collaborative lawyers are lawyers. Since not every case is going to be appropriate for collaborative law, we want clients to know that if their lawyer recommends that they consider using the collaborative process to resolve their dispute, it's because after careful consideration and thought, the lawyer truly believes that "in this case" it likely is the best approach -- not that it's the only approach the lawyer has to offer.
One of the questions we hear frequently from prospective collaborative clients is whether both spouses must hire a collaborative lawyer from the same collaborative group. The answer is: absolutely not. It is the two-way attorney-client representation agreement coupled with the well-crafted four-way participation agreement, that, in addition to the individual integrity and skill of the lawyers, protect the clients and the process. While the parties having lawyers from the same collaborative group may offer a number of advantages, such as lawyers who are facile in dealing with each other, who already trust each other, and who have standardized their forms and processes, independent collaborative lawyers also are comfortable and willing to work with any collaboratively trained lawyer, whether or not part of their group -- or any group. That's because along with the advantages of working with lawyers who belong to a close-knit group, there also can be disadvantages for clients, such as the risk of group think, the appearance of conflict inherent in the parties' lawyers also prioritizing their professional relationships with each other, and the controversial issue of potential conflicts of interest that can be created when lawyers get or give referrals in multiple cases from and to the same non-lawyer practitioners. Above all, we believe that a client's interests take priority, and that before committing to any process, clients are entitled to be fully and objectively informed.
Elizabeth Kates has practiced law in Florida for nearly 30 years. She is a director of the National Network on Family Law Policy, and was a charter member and director of Collaborative Lawyers of South Florida, Inc. for eight years before becoming Vice President and Director of Collaborative Lawyers Inc. Collaborative Lawyers, Inc. is a state-wide educational and professional development association and business directory of independent Florida attorneys at law and family law firms who practice in the areas of collaborative divorce and collaborative family law.
Information on this website should not be taken as legal advice. Laws change, situations differ, and there may be exceptions to general rules. Except as otherwise may be provided, this website and contents are © 2009 Collaborative Lawyers, Inc. Collaborative Lawyers, Inc., is a state-wide educational and professional development association and business directory of independent Florida licensed attorneys at law and law firms who practice in the areas of collaborative divorce and collaborative family law. It is not a law firm or attorney referral organization.