To Disclose or not to Disclose? That is the Question in Collaborative Law

• Author: David A. Hoffman,Andrew Schepard
• Published date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12457
• Date: 01 January 2020

TO DISCLOSE OR NOT TO DISCLOSE? THAT IS THE QUESTION

IN COLLABORATIVE LAW

†

David A. Hoffman

‡

and Andrew Schepard

#

Collaborative Law (CL) is a dispute resolution process increasingly used in family law and divorce designed to encourage

problemsolving negotiations byparties represented bycounsel. Many states haveadapted legislationto authorize and facilitate CL

and thousandsof lawyers havebeen trained in the CL process.CL lawyers and participantssign a ParticipationAgreement in which

theyagree that the lawyerswill be disqualified if theCL process terminates withoutsettlement. Theyalso promise full and voluntary

disclosureof information. The extent of the obligationof disclosure is, however, unclear.Through analysis of an extendedhypothet-

ical divorcesettlement negotiation,this article advocates thatCL lawyers and clients shouldassume an obligation to disclose mate-

rial factswithout a request from the other side.Traditional legal ethics,based on an adversarial framework,requires onlydisclosure

of information when requested by another party. In addition, in traditional legal ethics, a lawyer cannot disclose information

obtainedin the course of the lawyer-client relationship withoutthe client’sconsent even if materialto the negotiation. Some author-

ity regulating CL, however, suggests that CL participants and counsel should disclose material information without a specific

request evenif a client does not want the informationdisclosed. In that situation, theCL lawyer should encourage the clientto dis-

close theinformation but if the client refusesto do so, withdraw from therepresentation. This Articlereviews the argumentsfor and

againstan obligation of affirmativedisclosure in CL. It suggeststhat affirmative disclosureobligations should be the subjectof dis-

cussionbetween CL participantsand lawyers andthat CL Participation Agreementsshould be draftedto establish a clear obligation.

Finally, this article identifieskey areas for further discussionand research onCL disclosure obligations.

Key Points for the Family Court Community:

An obligation of affirmative disclosure of material information will increase the fairness and transparency of the CL

process for clients and counsel and improve public confidence in it.

The best place in the CL process to create an affirmative obligation of disclosure is through inserting appropriate

clauses in the Participation Agreement.

CL lawyers and parties should discuss their disclosure obligations before signing a Participation Agreement and draft

clauses in their Agreements which tailor their disclosure obligations to the specific needs and situation.

This Article provides specific suggestions for drafting Participation Agreement provisions that create an obligation of

affirmative disclosure for lawyers and participants.

This Article also provides an agenda for future discussion of the appropriate balance between confidentiality of client

communications and candor in the CL process.

Keywords: Affirmative Disclosure; Client Confidentiality; Collaborative Law; Disclosure and Non-disclosure; Material

Information; Negotiation.

Corresponding: dhoffman@blc.law; andrew.i.schepard@hofstra.edu

†

With apologies to William Shakespeare. See WILLIAM SHAKESPEARE,HAMLETPRINCEOFDENMARK, act III, sc. I. The authors are grateful

for helpful comments on an earlier draft of this article by Collaborative Law attorneys Diane Diel, David Fink, and Mark Weiss, and we

also wish to absolve them of responsibility for anyer rors in which wepersisted despite their excellent advice.

‡

John H. Watson, Jr. Lecturer on Law,Harvard Law School. Mediator, Arbitrator, and Collaborative Law Attorney at Boston LawCo llab-

orative, LLC. Former chair of the ABA Section of Dispute Resolution and former chair of the Section’s Collaborative Law Committee.

#

Sidney and Walter Siben Distinguished Professor of Family Law, Maurice A. Deane School of Law at Hofstra University.

Director of the Center for Children, Families and the Law.Reporter for the Uniform Collaborative Law Act.

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 83–108

© 2020 Association of Family and Conciliation Courts

I. INTRODUCTION AND OVERVIEW

Collaborative Law (CL) is a dispute resolution process in which lawyers represent clients in

settlement negotiations only.

1

CL has found its greatest acceptance and use in family law.

2

Many

thousands of family lawyers have been trained in the process, the International Academy of Collab-

orative Professionals (IACP) has several thousand members from different disciplines,

3

and there

are collaborative law practice groups around the United States and many other countries.

4

Eighteen

states have enacted the Uniform Collaborative Law Act (UCLA) promulgated by the Uniform Law

Commission,

5

and several states enacted statutes authorizing CL before the UCLA was enacted.

6

In

2007, the American Bar Association issued an Ethics Opinion approving the use of CL so long as

clients are informed of the benefits and risks of the CL process.

7

The goal of CL is to foster interest-based, problem-solving negotiations between the parties.

8

CL

parties and lawyers sign a “Participation Agreement”—a contract governing the specifics of how

the CL process will be conducted.

9

We include a sample Participation Agreement as Appendix A

to this Article.

10

The best-known provision of a Participation Agreement is the disqualification pro-

vision, which prohibits CL lawyers from representing CL clients in litigation if the CL process

terminates.

Another key, but somewhat less well known, characteristic of CL is the duty of candor. As described

in the UCLA Prefatory Note, “[v]oluntary disclosure of information is a hallmark of collaborative

law…. A collaborative law Participation Agreement typically requires timely, full, candid and informal

disclosure of information related to the collaborative matter. Voluntary disclosure helps to build trust

between the parties, a crucial prerequisite to a successful resolution of the collaborative matter.”

11

However, in the thirty years since CL was developed, the degree of candor required in CL nego-

tiations has not been clearly defined. For example, while the UCLA states that “on request of

another party, a party shall make timely, full, candid, and informal disclosure of information related

to the collaborative matter,”the IACP’sMinimum Ethical Standards for Collaborative Professionals

(“IACP Ethical Standards”) articulate a different standard—namely, the disclosure of “material

information whether requested or not.”

12

In addition, both the UCLA and the IACP Ethical Stan-

dards explicitly defer to the professional responsibility obligations applicable to the collaborative

professional’s profession of origin, which, for lawyers, generally require that client information be

kept confidential.

13

The purpose of this Article is to discuss why CL lawyers

14

and clients should have a higher duty

of disclosure of material information than called for by traditional legal ethics and how that higher

duty can be incorporated into CL practice. We address the tension between the CL lawyer’s duty to

maintain client confidences while at the same time honoring the CL duty of candor. We conclude with

a recommendation that CL practitioners embrace the affirmative duty of disclosing “material informa-

tion”

15

whether requested or not by incorporating that standard in CL Participation Agreements.

These are important issues for several reasons. First, for the parties (and particularly those in

divorce cases), the issues decided through CL often represent one of the biggest emotional and

financial transactions of their lives; clients need to have a clear understanding of the ground rules

concerning the disclosure of material information to achieve peace of mind about the fairness of

those transactions. Second, lawyers have an ethical duty to make sure that their clients are able to

give fully informed consent to the agreements they sign, and therefore, the parties and counsel in a

CL case need to have a common understanding of what each considers “material disclosure”under

the circumstances of their case.

16

Finally, the credibility of the CL process is at stake in setting stan-

dards for disclosure. In CL cases (unlike litigation) there are no tools for compelled disclosure of

information (such as depositions and interrogatories), and therefore, a lack of clarity about what

information must be exchanged could undermine public confidence in the CL process.

To summarize our argument at the outset: Our premise is that CL attracts lawyers and clients

who are seeking fairer, more amicable, less expensive, more durable, and more timely resolution of

conflict, and that transparency about disclosure of material information promotes those goals.

84 FAMILY COURT REVIEW