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

Collaborative Law (CL) is a dispute resolution process increasingly used in family law and divorce designed to encourage problem solving negotiations by parties represented by counsel. Many states have adapted legislation to authorize and facilitate CL and thousands of lawyers have been trained in the CL process. CL lawyers and participants sign a Participation Agreement in which they agree that the lawyers will be disqualified if the CL process terminates without settlement. They also promise full and voluntary disclosure of information. The extent of the obligation of disclosure is, however, unclear. Through analysis of an extended hypothetical divorce settlement negotiation, this article advocates that CL lawyers and clients should assume an obligation to disclose material facts without a request from the other side. Traditional legal ethics, based on an adversarial framework, requires only disclosure of information when requested by another party. In addition, in traditional legal ethics, a lawyer cannot disclose information obtained in the course of the lawyer‐client relationship without the client's consent even if material to the negotiation. Some authority regulating CL, however, suggests that CL participants and counsel should disclose material information without a specific request even if a client does not want the information disclosed. In that situation, the CL lawyer should encourage the client to disclose the information but if the client refuses to do so, withdraw from the representation. This Article reviews the arguments for and against an obligation of affirmative disclosure in CL. It suggests that affirmative disclosure obligations should be the subject of discussion between CL participants and lawyers and that CL Participation Agreements should be drafted to establish a clear obligation. Finally, this article identifies key areas for further discussion and research on CL disclosure obligations.     

COMMENTARY ON "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:"

Whether or not custody evaluators, testifying as expert witnesses, continue to make specific custody recommendations, custody decision making will continue to be based upon inadequate and untested evidence unless and until we reform the family court system in American courtrooms. Judges and lawyers must have specialized knowledge and training about such things as the developmental needs of children, the effects of divorce on children, domestic violence, and child safety issues; lawyers must develop litigation as well as mediation and negotiation skills; specialized family courts utilizing individual calendars and case management techniques must be established; and the complexities and intellectual challenges of family law cases needs to be recognized.     

WHAT SHOULD FAMILY LAWYERS KNOW? RESULTS OF A SURVEY OF PRACTITIONERS AND STUDENTS1

The contemporary practice of family law demands that lawyers know far more than the law. Results of a recent survey of professionals and law students suggest that today's family lawyer needs knowledge and skills that are often missing from law school curricula. Survey respondents emphasized the importance of strong interpersonal skills like listening, negotiation, and working with clients in emotional crisis, as well as keen understanding of financial issues in family law, the impact of separation and divorce on children, and the ethical dimensions of family law practice. Law students held contrasting views to law faculty and to practicing attorneys on a number of measures, ranking adversarial courtroom skills as more important and placing less emphasis on skills, knowledge, and attributes related to ethics.     

The Practice of Law With LGBT‐Parent Families

In this article, I examine how a history of legal conflict has produced a constantly evolving professional identity for lawyers representing lesbian/gay/bisexual/transgender (LGBT) clients on family matters. Drawing on in‐depth interviews with 21 lawyers, I describe variation across areas of specialization, advertising, clientele, and access to professional networks. In addition, I focus on how sociopolitical and legal context shapes professional identity and practice for these lawyers, demonstrating the importance of practice location for this group of lawyers. Although interviews were conducted prior to national marriage recognition, these findings provide insight into the future development of the LGBT family law profession post‐Obergefell.     

关于律师政治素质和社会责任问题的思考

律师是为当事人提供法律服务的执业人员,具备坚实的法律素养是其基本要求,而要成为一名真正合格乃至优秀的律师,就必须同时具备良好的政治素质和政治敏锐性,要勇于承担维护公平正义的社会责任。我国律师业所面临的困境与法治处于发展状态有关,律师的困境就是法治的困境,而解决或缓解律师和律师业困境的首要问题是如何处理好律师政治素质与社会责任的问题。     

The Stalking of Lawyers: A Survey Amongst Professionals in Milan

This is the first study focused on the stalking of lawyers. The authors hypothesized that these professionals are at risk of being stalked by their clients and that this stalking is ascribable to RECON type I.B. A random sample of lawyers was survived. 37.3% of 166 respondents revealed to have been stalked: not only by clients, but also by adversaries and colleagues. Data seem to confirm that the stalking of lawyers mainly belongs to RECON type I.B. Female lawyers were at greater risk than male lawyers. In family law cases, the professionals tended to be stalked by the former husbands of the lawyers' clients (p < 0.01). Several female lawyers—but no male lawyers—were threatened with harm to their family members (p < 0.05). Most of the stalking victims described psychological effects of being stalked. Who suffered physical aggression or repercussions on work was more likely to lodge a complaint (p < 0.01).     

Law as Information in the Era of Data‐Driven Agency

This contribution introduces the mathematical theory of information that ‘informs’ computer systems, the internet and all that has been built upon it. The aim of the author is to invite lawyers to reconsider the grammar and alphabet of modern positive law and of the Rule of Law, in the face of the alternative grammar and alphabet of a data‐driven society. Instead of either embracing or rejecting the technological transitions that reconfigure the operations of the law, this article argues that lawyers should collaborate with the computer scientists that engineer and design the affordances of our new onlife world. This is crucial if we want to sustain democratic participation in law‐making, contestability of legal effect and transparency of how citizens may be manipulated by the invisible computational backbone of our rapidly and radically changing world.     

FITTING THE FORUM TO THE FAMILY FUSS

This article analyzes advantages and disadvantages of mediation, collaborative law, and cooperative law based on the parties' capabilities, attitudes about professional services, and assessments of and preferences about the risks of various procedures. Each of these procedures has virtues and there is great value in providing clients and practitioners with a choice of procedures. Under collaborative and cooperative law, lawyers and clients agree to focus exclusively on negotiation from the outset the case, typically using a problem-solving process. Collaborative law involves a written "disqualification agreement" between all the parties and their lawyers under which lawyers are disqualified from representing parties in litigation if either party chooses to litigate. Cooperative law is similar but does not use the disqualification agreement. Because most communities do not have lawyers offering cooperative law, collaborative law groups should encourage at least some of their members to offer clients the option of cooperative law.     

Do Not Make their Trauma Your Trauma: Coping with Burnout as a Family Law Attorney

In the field of family law, attorneys frequently expose themselves to highly emotional and traumatized clients. Litigation is by nature a high‐stress occupation, demanding a high level of intellectual and emotional engagement from the contesting lawyers. Adding the burden of inherently distressing content to litigation can impair a lawyer's functioning. The effects are often referred to as “secondary trauma.” This Note proposes that state bar associations should take a more active role in providing mental health support to prevent burnout in family law attorneys by (1) offering voluntary classes to educate attorneys about the dangers of, and ways to cope with, the burnout that comes with working with traumatized clients in family law and (2) organizing support groups among local family law communities.

Key Points for the Family Court Community:
• Claims against family law practitioners account for the third highest percentage of all malpractice claims against lawyers.
• Burnout is a serious problem for family law attorneys.
• Programs sponsored by state bar associations are available and need to be expanded.
• The American Bar Association's Model Rules require that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.
• The unique nature of family law, centered on relationships and emotions, puts family law attorneys at a higher risk for experiencing the effects of secondary trauma than other areas of law.
• Lawyers at risk for secondary trauma can avoid its effects by educating themselves about such effects.

     

LAW SCHOOLS AND FAMILY COURT REFORM

Family courts are underfunded and overwhelmed, and the quality of representation provided by counsel in family court cases is problematic. This article discusses what role law schools can play in promoting family court reform. It argues that law school involvement in family court is consistent with the law school's core missions of education, research, and public service. The article illustrates how law schools can be involved in family court reform by discussing interdisciplinary projects of the Center for Children, Families and the Law of Hofstra University and North Shore–Long Island Jewish Health Systems. Finally, the article identifies some lessons to be learned if law schools want to be involved in family court reform.     

“He did everything he possibly could for me”: medical malpractice claimants’ experiences of lawyer–client relations

Lawyers are obliged to act in the interests of their clients, however, it is not clear how lawyers should do this in practice. Should lawyers follow their clients' instructions without deviation, should they actively manage their clients' expectations, or as many studies suggest, do lawyers place their own interests first? This paper examines how lawyers interact with medical malpractice claimants. It reveals that lawyers take a client-aligned approach, where lawyers acknowledge their client's goals, but do not necessarily do what the client says. We argue that this approach is made necessary by legal and organisational constraints which limit the ability of lawyers to produce the types of outcomes that their clients want.     

What Did the Lawyers Do During the ‘War’? Neutrality,Conflict and the Culture of Quietism

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.     

Vico and Imagination: An Ingenious Approach to Educating Lawyers with Semiotic Sensibility

Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as “given” even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because clients often can achieve their objectives when their lawyers crudely manipulate the symbols of law, these endeavors pay very well. Well-paid lawyers tend not to ask too many questions. Consequently, semiotics is, at best, misunderstood by lawyers; more likely it is wholly unknown. A lawyer’s avowed instrumentalism is the very problem to be addressed in this regard. For the scope of discussion, I refer to Vico’s famous On the Study Methods of Our Time and draw my conclusion for the lawyer of our time.     

Regulating intersectional activity: privacy and energy efficiency,laws and technology

Using a case study, this paper explores the extent to which one area of law (privacy and data protection) can intersect with, and be challenged by, proposals for delivery of another goal – greater energy efficiency. The article then explores the extent to which these fields are becoming more integrated; and also the risks of relying on technology (notably through Privacy by Design) to do this, particularly given the uncertainties embraced by lawyers and which can be problematic to technologists. Having identified challenges in meeting both energy efficiency and privacy/data protection goals at the same time, the article develops two responses. One looks more widely in law, to competition, to prevent particular activity and to confirm the relevance of greater legal interdisciplinarity. The other is a more multi-faceted collaborative governance approach, involving legal and technical expertise and consumer perspectives, with standards having a valuable role. Addressing climate change through greater energy efficiency should be an appropriate motivation to bring about this second approach, which draws on wider environmental governance developments. With largely a UK and EU focus, but seeking to be of transnational relevance, the paper makes key contributions as to the capacity and limits of how law can address societal challenges; explores the risks of assuming that social and legal problems can be readily addressed by technology; confirms the need for lawyers to look to other fields of law; and assists progress in an increasingly intersectional and dynamic field.     

Social networking sites and the legal profession: Balancing benefits with navigating minefields

The purpose of this article is to review the impact of social networking sites on law, the legal profession and dispute resolution. Within a very short period of time, social networking sites such as Facebook, Twitter, and MySpace, combined with social networking hardware platforms, such as iPad, iPhone, Blackberry, and Android, have infiltrated the profession of law and dispute resolution. Many legal professionals now have a social networking profile, use information on social networking sites as evidence, and interact with other lawyers and judges through such forums. This increased interaction in a publically accessible and viewable medium presents a challenge to the legal profession's traditional ideas of independence, confidentiality, and rules of evidence. Social networking mediums are here to stay. Therefore, this article looks at how this trend affects law and the legal profession, what issues it presents to lawyers and judges, whether new laws are necessary to take into account the impact of social networking sites and the benefits of such technology in fostering access to justice and helping parties achieve justice.     

Anticipatory refusals and the action of 'wrongful living'

After years of debate, opinion among bioethicists and medical lawyers seems to have accepted that anticipatory refusals of medical treatment can, and furthermore should, be accorded the same legal status as contemporaneous refusals. But what would be the legal repercussions for a medic who treated an incompetent patient in contravention of such a directive? What remedies would be available to the claimant whose life had been extended contrary to his express wishes? This issue has never been explicitly addressed by the UK courts, but this paper looks at some of the conclusions and inferences we can perhaps draw from other, possible analogous areas of law. It also considers several North American cases that have addressed this issue, and asks what lessons we can learn therefrom.     

Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law

This article contrasts policy advocacy of alternative dispute resolution, and demonization of lawyers and court proceedings in family law, with research evidence that calls those policy positions into question. The research demonstrates, broadly, that restrictions on the availability of publicly funded legal representation do not necessarily lead parties to choose alternative resolution processes, that lawyers are much less adversarial than self–representing litigants, and that lawyer representation and litigation may produce more satisfactory and appropriate outcomes than mediation in some kinds of family disputes. The article argues that legal aid policies should respond to these realities rather than clinging to adversarial mythologies.     

Children Resisting Contact with a Parent Due to Abuse,Alienation, or Other Causes: Can a Proactive Role for Lawyers Contribute to Better Outcomes?

Lawyers have a significant role to play in cases where children are resisting contact with a parent, or the family appears to be going down that path, in the context of parental alienation, family violence or other factors. These cases pose great challenges for lawyers dealing with parents, as their clients are often anxiety‐ridden, angry, scared, and may have difficulty focussing on the long‐term interests of their children or themselves. A lawyer may be one of the first professionals encountered by the parents; lawyers for parents are advocates, but they are also in a position to provide wise counsel, to help triage the situation, provide practical advice, and early, helpful solutions. This article sets out practical suggestions for lawyers acting for parents. What can and should lawyers do to ensure they are part of the solution, not part of the problem? Lawyers need to be able to identify the potential problems and provide practical help to the family – whether they are acting for the “preferred” parent, the “rejected” parent, or the involved children.     

Predicting future litigiousness

Using a national sample of adults with various legal experiences, the current study examines the impact of prior legal experiences, general attitudes about lawyers and the legal system, and status characteristics on individuals' perceived likelihood of hiring a lawyer for resolving various personal problems in the future. Persons who have been involved in prior legal disputes, who have more positive attitudes about lawyers, and who hold more favorable views about the effectiveness of law in resolving conflict report significantly higher chances of hiring an attorney. Individuals' assessments of their future litigiousness, however, are largely independent of their status characteristics (e.g., gender, income, education, age) and the quality of treatment in their prior legal disputes (e.g., ratings of procedural justice, level of satisfaction with case outcome, and how their lawyer handled the case). The paper concludes by discussing the implications of these findings for improving the quality of legal services and for the future use of law as a method of conflict resolution.