Monday, August 25, 2020

Informal Talk on Collaborative Conflict Resoution in Baltimore, December 16, 2020

Announcement from Maryland Mediation and Conflict Resolution Office [MACRO]:


The Maryland Mediation and Conflict Resolution Office (MACRO) and the University of Baltimore's Negotiation and Conflict Management Program are proud to announce, and to invite you to attend, an "Evening With Pauline Tesler" to be held on December 16, 2008 at 7:00 PM in Baltimore, MD.

Ms. Tesler is perhaps the most prominent and respected speaker, writer, and theoretician in the rapidly growing field of collaborative law, as well as co-creator of the interdisciplinary collaborative divorce team model, co-founder and first president of the International Academy of Collaborative Professionals, recipient of the A.B.A.'s first "Lawyer as Problem Solver" award, and a leading international collaborative practice expert, author, educator, trainer and practitioner. This event will offer an exciting and rare opportunity to hear her speak and to engage in discussion with her. The "Evening With" series brings national luminaries in the conflict resolution field to Maryland.

Previous Evening With presenters incude Baruch Bush, the cofounder of the transformative approach to mediation, and MIT Professor Larry Susskind, consensus-building expert, cofounder of the Harvard Program on Negotiation and founder of the Consensus Building Institute. A flyer about the event featuring Ms. Tesler will be forthcoming. For further information please contact Cheryl Jamison, MACRO's Director of Quality Assistance,
cheryl.jamison@mdcourts.gov.

Missouri Supreme Court approves collaborative law as ethically permissible form of practice of law

The Missouri Supreme Court has issued a formal opinion laying to rest any doubts about whether it is ethical for Missouri lawyers to offer collaborative legal services to their clients. The Missouri opinion is in the mainstream of state ethics opinions, the overwhelming majority of which have given thumbs up to collaborative legal practice. In August 2007, the ABA ethics committee added a strong voice to the growing chorus of approval.

Here is the full text of the Missouri opinion:

Advisory Committee of the Supreme Court of Missouri
Formal Opinion 124

COLLABORATIVE LAW

The question is whether it is ethically permissible for Missouri
attorneys to engage in "collaborative law" practice. For purposes of
this opinion, "collaborative law" will be a process by which both
parties agree that they will seek to settle their dispute and, if
they are unable to do so, each will get new counsel to litigate the
case.

The agreement can take many forms. For example, it can be drafted in
such a way that the parties can obtain judicial enforcement or it can
be legally unenforceable. From an ethics perspective, it does not
matter whether the agreement is enforceable between the parties. The
ethical concerns focus on the agreement and communication between the
attorney and the attorney's client.

Ethically, the primary concern is whether the client has given
informed consent as defined by Rule 4-1.0(e). A collaborative law
process is a type of limited scope representation. The attorney must
clearly and thoroughly inform the client how the process works. The
attorney must explain the pros and cons of the process and provide a
clear, thorough explanation of the alternatives. Under Rule 4-1.2,
the client must sign a written consent.

The agreement between the attorney and client may provide that the
attorney will withdraw if settlement fails. This may create a
tension between the client's interests and the attorney's interests.
The attorney may not want to withdraw, but the attorney must not put
his or her interests above the client's interests, as determined by
the client. If the client determines that settlement has failed, the
attorney may not try to persuade the client to continue to pursue a
settlement or to accept a settlement, unless the attorney objectively
believes it is in the client's best interest. The attorney's desire
to remain in the case cannot be a factor.

This potential tension does not make the collaborative law process
unethical. Similar tensions exist in many other attorney-client
relationships. The most obvious example is the potential tension
between the attorney and client in a contingent fee case. The client
may wish to accept a settlement far less than the attorney considers
advisable. If the attorney's assessment is correct, accepting such a
settlement will result in a much smaller fee for the attorney.
Similarly, a client may be unwilling to accept a settlement that the
attorney considers advisable because of the attorney's doubts about
the likelihood of success at trial. We allow contingent fees because
we are willing to rely on attorneys to follow their ethical
obligations of putting their clients' interests ahead of their
personal interests. We are only using contingent fees as an example
of a similar situation where the attorney must be relied upon to put
the client's interests first. Contingent fees are not permissible in
most domestic relations matters. Rule 4-1.4(d)(1).

The potential that individual attorneys may violate the duty of
loyalty, from time to time, does not make the practice generally
unethical, as long it is reasonable to believe that the vast majority
of attorneys will fulfill their ethical obligations. In the context
of collaborative law, the tension between the interests is not
unreasonable. The practice of collaborative law is considered
ethical in Missouri.

If an attorney practicing collaborative law finds him or herself in
an actual conflict situation, relating to this or any other issue,
that attorney must withdraw or, if permissible, obtain conflict
waivers consistent with the conflict rules found within Supreme Court
Rule 4. If the attorney's personal interests create a situation that
materially limits the attorney's representation to the extent that
the attorney will no longer be able to provide competent and diligent
representation, an unwaivable conflict exists and the attorney must
withdraw.

Saturday, August 23, 2020

Semi-Annual Straus Institute Skills Program in Woodstock, Vermont

Collaborative lawyers who have completed at least a dozen or so collaborative cases are invited to enroll in the second of two advanced "Master Class" seminars in collaborative family law, to be held in Woodstock, Vermont, in October. (The first seminar, offered in June at Malibu, California, received rave reviews from participants.) The October program, co-sponsored by the top-ranked Straus Institute for Dispute Resolution (a program of Pepperdine Law School) and the University of Vermont Law School, will allow workshop leaders and practitioners to work together intensively over two and a half days, exploring the most challenging issues we face in our professional work. The small workshop size and informal, flexible format permit us to identify each participant's personal growth edge and to engage in exercises and discussion that can take participants to the next level of excellence.

Woodstock is a classic New England village, said to be "storybook" beautiful, especially in October. The program venue, The Woodstock Inn, has great charm. The daily schedule has been set to end early enough in the afternoon so that participants (and their families, if they bring them), can enjoy some sightseeing every day.

This program is a rare opportunity to engage in collegial learning and problem solving with a small group of highly skilled colleagues from around the U.S. and Europe. Many participants in the Malibu seminar had completed more than fifty cases and several had handled over a hundred cases. These lawyers brought a depth and breadth of insight to the seminar discussions that participants described as highly stimulating and extremely valuable. In the words of Janet Denton, a Texas collaborative lawyer who attended the June seminar, "I found my mojo in Malibu!" David Fink (my seminar co-leader) and I hope you can join us in Woodstock for another in-depth exploration of the creative edge of collaborative practice.


For forthcoming Straus Institute training programs, including the Woodstock seminar:
http://law.pepperdine.edu/straus/training_and_conferences

Bulk discounts on Second Edition of ABA book on Collaborative Law

Discounts of up to 40% are available from the publisher, American Bar Association. for bulk purchases of the second edition of my ABA book, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation. Go to this link for details:

http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5130160

Second Edition of my book, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation, now available from ABA

Making the Switch to Collaborative Law

Excerpted from Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, Second Edition

By Pauline H. Tesler

Although switching to a collaborative law practice involves starting over, doing so is challenging, rewarding, prudent, and socially useful.

  • Challenging: By the time most of us reach our prime professional years, we have mastered our craft, but we are rarely called upon to master an unknown skill. Learning the craft of collaborative lawyering involves mastering knowledge and skills that were not taught to us in law school and that few of us learn in the course of our litigation practices. Lawyers like challenges; learning to do this work is a particularly engaging challenge.
  • Rewarding: We work very hard when we do family law trial work. If we get recognition for a job well done, it is more likely to come from the judge or a colleague than from the client for whom we toiled. In collaborative practice, however, it is common for clients who reach agreements to express profound gratitude for the work done by both lawyers. Collaborative lawyers learn to enjoy the appreciation of the clients they serve as a regular feature of their work.
  • Prudent: The market share of family law clients who want to hire a lawyer to manage their entire divorce within a litigation matrix from start to finish is diminishing. Increasingly, even clients who can afford such representation do not want it. Many clients ask for mediation and for unbundled legal services rather than turn the case over to the all-powerful lawyer of record. From a strategic planning perspective, lawyers who want to serve the needs of the market by offering a full menu of dispute-resolution options will need to be familiar with collaborative law.
  • Socially Useful: Given the negative impact highly conflicted divorce proceedings can have on all parties, it is apparent that we serve not only our clients but our larger society by offering collaborative law and by learning to do it well. In this regard, collaborative law is in the forefront of an upwelling of change in the legal profession.

To do the work of collaborative law well, an experienced lawyer must become a beginner and unlearn a bundle of old automatic behaviors before he or she can acquire the new, more conscious attitudes, behaviors, and habits of a good collaborative lawyer. Without this effort, the pull toward conducting conventional settlement negotiations will be strong, and the risk of unsuccessful collaboration will be relatively high.


Sponsoring Entity:


Section of Family Law