How does Collaborative Practice affect the traditional attorney-client relationship?
Collaborative Practice changes some aspects of the traditional attorney-client relationship. Your attorney is your advocate and advisor. Per the Collaborative Practice Agreement, your attorney focuses primarily on being your “Counselor at Law.” Rather than preparing for litigation, your attorney will be assisting in developing the terms of a settlement that both spouses will deem fair and effective. The goal is not to out-litigate the other side, but rather to reach a fair settlement of the case. Your attorney will sign an agreement that, in order to promote settlement, there will be civility, honesty, and full disclosure of assets. Litigation maneuvering is not a part of Collaborative Practice.
However, this does not mean that everything you disclose to your attorney necessarily is disclosed to the other side. There will be discussions that you and your attorney have, outside the presence of the other side, that are confidential. Nonetheless, the philosophy of Collaborative Practice is to raise issues, disclose interests/aims, and work toward settlement. This is much different than the litigation model which is to frame issues for one side’s advantage, withhold information, and try to get an upper hand in the litigation process.
In addition, the disqualification provision of the Participation Agreement provides that, if either party decides to resort to adversarial litigation, all of the Collaborative Professionals must resign. Obviously this is a different type of attorney-client relationship. However, experience has shown that this provision is important in keeping the process on track and motivated. It also allows everyone to put their full energies into crafting an agreement without looking over their shoulder for trial implications or maneuvers.