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Collaborative Divorce: When, How and Why We Can Benefit Form Crossing the Confidentiality Line

From the beginning of the justice system, the concept of confidentiality has been the cornerstone of the Attorney-Client relationship. The modern concept of confidentiality, which includes confidential information, privileged information, and unprivileged information, is defined and delineated in the Texas Disciplinary Rules of Professional Conduct, The Texas Rules of Evidence and the Federal Rules of Evidence, to name a few. All of these Rules, Codes, and Statutes were created and now stand in their amended current form to facilitate the orderly litigation of the civil and criminal disputes of our society.

Confidentiality and its place in the orderly litigation of our disputes is the reason why clients can and do talk to their attorneys about the client’s most imitate problems, concerns, and thoughts. It is understood by the public that what you tell your attorney in confidence is supposed to stay with your attorney.

Now comes Collaborative Divorce, where the clients and their attorneys sit around a table and divulge and discuss all sorts of confidential information. Why would clients (and their attorneys) be willing to divulge and discuss this information? Attorneys often receive questions and concerns from the clients in Collaborative Divorce cases regarding the waiver of the confidentiality between an attorney and their client in this type of divorce process. This concern over confidentiality and the partial loss of it has led some attorneys to refuse to even practice Collaborative Divorce. So how is it that a trained professional with a law license crosses over this confidentiality line and does so in a way that is ethical and how and why could that be in the best interest of their client?

Of course, the decision to pursue a legal matter, whether it be a family matter, a probate matter or some other civil action, using the collaborative method has to be the client’s decision. The problem with the client making that decision is that the public is because the collaborative process is still fairly new, the public is not familiar with the benefits of it that justify them waiving their right to confidentiality. Even the most self-educated prospective client has little actual knowledge concerning the workings of the collaborative process, the potential loss of confidentiality in the collaborative process, and how that will affect them and their case. The attorney’s role is especially critical in providing a potential collaborative client with the information necessary to educate them about the reasons that the collaborative process may still be a good choice for them and their case.

One of the things that the attorney may discuss with the client is that in litigation, after great expense and time, whatever they wanted to keep confidential may still come out, but then it would be in a public forum and could be much more damaging. Illustrations of this would be if one client had used drugs, had an affair, engaged in prostitution or pornography, or had not yet come out that they were gay.  If you are in a divorce case, whether litigation or collaborative, it is likely those “skeletons” are going to come out; your choices are to have control over how the information comes out and where it is disseminated (in a collaborative case) or have no control over how the information comes out and is disseminated (in litigation).  Many lawyers who do not offer Collaborative Divorce as an option to their clients do not fully understand or appreciate the value of being able to control the sensitive information in such a case.

Texas Collaborative Divorce attorneys have been trained to understand the reasons for and risks of “Full Disclosure” in the Collaborative Divorce process. Educating the client about the importance of “Full Disclosure” is paramount in helping them explore the methods available to them to pursue his or her case. That education process on full disclosure will include the pros and cons of the kitchen table method, the Collaborative Divorce method, the litigation method, mediation (in the Collaborative process or in a litigated case) and other alternative dispute resolution methods, and how they can be used to resolve their case. In comparing and contrasting the litigation method and the collaborative method, we talk about information gathering, including how the Texas Rules of Civil Procedure allows a party to perform formal discovery versus how, in the Collaborative Divorce process, the participants agree to be transparent, and volunteer or facilitate the neutrals’ accessing and obtaining all information that either party believes is relevant to the case. Ultimately, the client decides which method best suits them for the resolution of their case. If the client chooses the Collaborative Divorce process, after a substantial amount of preparation between each attorney and their client there will be a Joint Collaborative Meeting where both clients and their attorneys, and possibly third party neutrals, are all sitting around the same table to discuss the clients’ goals and interests and the rules of the Collaborative Divorce process. In later joint meetings, again after substantial private (and confidential) preparation with each lawyer and their client, the team will work together to gather and review financial information, develop options and eventually negotiate a settlement of the case.

Here is the confidentiality line: While the client is being educated, the attorney must clarify where this line is in Collaborative Divorce. Confidentiality continues to exist in the collaborative process when it concerns the strategy of one’s case. Confidentiality continues in that, in addition to those meetings between the client and their attorneys to prepare for joint meetings, the client may have a confidential “privileged” communication with his attorney at any time during a Joint Meeting by calling for a break and stepping outside or into a private conference room with their attorney. Confidentiality does not continue as far as the “facts” of the case once the collaborative agreement is signed, such as what are their assets, liabilities, and income. The client needs to understand that the information that is accumulated during a Collaborative Divorce case is not admissible in a future litigated proceeding unless that information is discoverable by some other means, but “The cat is out of the bag.” So, for example, such things as producing tax returns or credit card bills would be admissible in court even if the clients left the collaborative process because they are able to be gathered by means other than the conversations in the collaborative joint meetings. But, conversations in a Collaborative Joint Meeting, just like in a mediation, are confidential and privileged between those who were in the room at that meeting. In other words, no one who was present at a joint collaborative meeting can testify in court about conversations or even behavior or body language that was seen in a Collaborative Joint Meeting. The Attorney needs to make sure that the client understands that signing the Collaborative Divorce Participation Agreement means that the client agrees to full disclosure and the effect that has on their confidentiality rights. Specifically, if there are fact issues that the client had wanted to keep confidential, the client can no longer do that. The client just agreed to a full disclosure. The nuances to confidentiality are often lost on a client until a particular fact that is important to them is about to be revealed. This must be understood, and more importantly, not misunderstood by the prospective client.

The discussions regarding which process is right for a client takes place at a time before the client may feel comfortable telling the attorney all of the issues in the case. Clients rarely tell their most intimate secrets at the first or second consultation with their lawyer. A prospective client may not tell the attorney about a paramour, recreational drug use, or a potentially problematic issue in that client’s history. The decision to use the Collaborative Divorce process may have been made and agreements signed before the client really fully understands that “Yes you do have to tell your soon-to-be ex about that.” The client may believe that the revelation of a paramour, or that a trip to Colorado which included the legal use of a drug (that is not legal in Texas) will hurt that client’s property division or change their case involving the children. If the client’s position is that “my soon to be X does not know about this and I do not want to tell them,” the attorney can find himself or herself in an ethical dilemma.

Reviewing the signed participation agreement should make it clear to the client that they have contractually agreed to full disclosure, and that the attorney is under a duty to end the collaborative process if the information is not disclosed. But, was the client fully informed about the loss of this confidentiality before they signed the participation agreement. Did the client really understand that this was what was meant by a “transparent process?” The attorney faced with ending a collaborative case, in this type of scenario, could have alleviated this dilemma by making sure the client did not misunderstand the loss of confidentiality that comes with the collaborative process. An attorney may feel that the “fact” that the client does not want to be disclosed, may not be damaging to the client’s case or even all that relevant. However, for moral, religious or other personal reasons the client may not want the information disclosed.

Attorneys who have worked with each other on multiple Collaborative Divorce cases and have a relationship of trust may be able to work out an option where “non-relevant” or “non-important” information is withheld and the case is completed, with the permission of the other party. However if the issue of a confidential “fact” was discovered during the education process, between the attorney and the client, there are many more options. The client could be educated on the real versus the perceived danger of revealing the information. The client could be educated on the benefits of the collaborative process and how they outweigh the downside of revealing the information. The client may discover that during the education process on “full disclosure”, that this case may not be appropriate as a collaborative case. Once again, the nuances to confidentiality are often lost on a client until a particular fact that is important to them is about to be revealed. This discovery at the beginning of the relationship is much easier to deal with than a case that puts the attorney and client at odds due to a misunderstanding.

A collaborative attorney has to affirmatively address this issue with their clients. The attorney needs to tell their clients at the outset that Collaborative Divorce is a process that requires full disclosure and transparency , and if the client knows of something that he or she might not want to share, then the client has a decision to make: either be willing to reveal the fact or pass on the Collaborative Divorce process and opt for the litigation process for resolving the client’s dispute. A discussion concerning potential problematic facts should be had, even if there have been no such facts presented to the lawyer by the client. Give clients examples of common “facts” that come up in cases, hidden assets, paramours, drugs, alcohol abuse or other addictions. Give clients examples of possible future “facts”, that even if not asked for should be shared. Facts like salary increases, loss of their job, job relocation, if not asked for, may not be considered a violation of the ”letter” of the participation agreement but are certainly a violation of the “spirit” of the participation agreement. Give your client all the opportunity that you can so that your client can learn what confidentiality is in a collaborative case. To not do so is to assume the client understands a concept with which the client has little or no actual experience.

Confidentiality is a concept that attorneys work with all the time. It is therefore easy to assume that when our client states they understand the concept of confidentiality, we take their word for it and move on. Attorneys need to take particular care to thoroughly think this concept through themselves to enable them to educate the client on this loss of confidentiality before the collaborative agreement is signed. This presentation does not purport to be an exhaustive study of this subject but rather begins the exploration of and discussion that will hopefully benefit the Collaborative Divorce community and the clients that those professionals serve.

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