by RICH CASSIDY on AUGUST 10, 2011
A.J. Grossman’s Comment on my last post, “ABA House of Delegates Rejects Uniform Collaborative Law Rules and Act, ” makes good points, and asks good questions. Here is his comment, and my reply:
“My firm practices collaborative law and we are disappointed at this result, but not too surprised. Our attorneys also hold LL.M. degrees in dispute resolution from The Straus Institute at Pepperdine University School of Law. From my perspective, the arguments above are not persuasive.
First, the arguments could easily be applied to mediation as well, and I fail to see how these dangers are somehow linked only to collaborative practice. I have some questions:
1. Exactly how would collaborative practice undermine judicial regulation? How does judicial regulation reach into the mediation room?
2. Exactly how does a wealthy spouse victimize the other spouse using the collaborative law practice?
3. Am I incorrect in stating that a wealthy spouse victimizes his/her spouse by interviewing with every lawyer in town so that he/she has no opportunity to hire a local lawyer to litigate the case?
4. Or how about the wealthy, represented spouse who uses the mediation process to tip the scales in his/her favor by taking advantage of the fact that the other spouse is not represented and the mediator selected refuses to give an evaluation of the case to the non-represented spouse?
5. What about the litigated case where the wealthy spouse can afford a high-dollar law firm and the other spouse is forced into a pro se situation?
I think this situation is another example of people acting out of fear; fear of something they do not understand or want to understand because it is different from the paradigm in which they are comfortable operating. The “We’ve always done it this way, so why should we change?” perspective.
Traditional divorce is working so well now for people, so we should just keep doing what we have always done right?
The second argument that vulnerable parties will be taken advantage of by their wealthy spouses has no merit and is certainly not tied to collaborative practice. We see this scenario played out in traditional litigation as well as in mediation.
In each case, mediation and collaborative practice, we are still bound by our rules of professional conduct. Our roles, duties, and obligations do not change simply because we are working in a collaborative process or a mediation.
We are looking forward to a future opportunity in which the ABA will provide its approval.
A.J. Grossman III, J.D., LL.M.
Attorney & CEO of the law firm of Grossman & Grossman P.A.
Mr. Grossman:
Thanks for your comment.
I think you are right, these criticisms could be (and were) applied to mediation as well. As I recall, the ABA was not out-front on mediation either. I had hoped that ABA would do better on collaborative law, but I am afraid that was not to be.
Let me try to respond to your questions:
- Exactly how would collaborative practice undermine judicial regulation? How does judicial regulation reach into the mediation room?
As I understand the argument, it was that the House of Delegate’s approval of the UCLRA would undermine judicial regulation of the practice of law, because the Act in effect regulates that practice of collaborative law, and approving it would encourage state legislatures to adopt it, and therefore invade what should be the exclusive province of the state judiciary. I agree that the courts, not the legislatures should regulate the practice of law. The key word is “should,” as it is not correct that in all states the regulation of the practice of law is within the exclusive control of the courts. I understand for example that in California, it is very clear that the Legislature has that function.
It is true that the Uniform Law process is legislatively oriented, but it was never true that our uniform law on collaborative law was only for legislative adoption. The Uniform Law Commission often promotes Uniform Acts through court rule making processes, as it is at present with the Interstate Depositions and Discovery Act, which is now pending for adoption by court rule in North Dakota, Oregon, and my own State of Vermont.
After early criticism of the Uniform Collaborative Law Act we recast the Act to make clear that it should be presented to the courts or legislature or combination of both, and re-titled it as the Uniform Collaborative Law Rules and Act, to make that clear to the most casual observer.
Sadly, that did not seem to make any impact on our critics in the House.
- Exactly how does a wealthy spouse victimize the other spouse using the collaborative law practice?
Here is the theory as I understand it: the wealthy spouse engages in collaborative negotiations never intending, from the beginning, to conclude a settlement. He (I say he because in the house of delegates debate was suggested that this technique would be used by wealthy men against their poor wives) pretends to participate in good faith in collaborative negotiations until his wife’s ability to pay counsel is exhausted, or nearly exhausted. Then he walks away from the negotiations, leaving the poor wife unable to retain counsel, and unrepresented. Of course this could happen, but it’s one of the parade of imaginary horribles that, from time to time actually do occur in litigation. I don’t think it’s any more likely than many other ways in which the litigation process is, at the margins, abused.
- Am I incorrect in stating that a wealthy spouse victimizes his/her spouse by interviewing with every lawyer in town so that he/she has no opportunity to hire a local lawyer to litigate the case?
As I gather you know, is a well-known gambit in bitter divorce litigation. As a result, comment to the model rule 1.18 of the model rules of professional conduct provides:
[2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a “prospective client” within the meaning of paragraph (a).
- Or how about the wealthy, represented spouse who uses the mediation process to tip the scales in his/her favor by taking advantage of the fact that the other spouse is not represented and the mediator selected refuses to give an evaluation of the case to the non-represented spouse?
As you know, some people will always try to game the system. This is one example of another way in which it occurs.
5. What about the litigated case where the wealthy spouse can afford a high-dollar law firm and the other spouse is forced into a pro se situation?
Now you have put your finger on what I think is a serious and ongoing problem. As David Boies told lawyers who attended the 2010 ABA opening ceremony at last year’s annual meeting, our adversarial system works well indeed when both sides of a dispute are adequately resourced. It often works well when neither side is adequately resourced. But it normally does not work well when one side is adequately resourced and the other is not. This is a fundamental access to justice problem, and not one that is unique, in any way, to collaborative law. (See my September 9, 2010 post “ABA Resolutions Intended To Adopt Civil Gideon Are Too Narrow”)
Thanks again for your comment. Your questions are good ones, and I think I’ll repost this reply so it does not get lost in the comment section of this blog.
Who knows how long it will be before the ABA comes back to the subject. I hope we see something sooner, rather than later.
Rich