What Happens if Someone Refuses to Provide Requested Information?

This is a common question, but an uncommon problem.  It is a logical question if one is coming from the world of family law litigation.  Why?  Because people are deceitful and hide or destroy evidence all the time.  Sometimes they get caught.  Sometimes they don't.  That's litigation.

In Collaborative Law, cases are supposed to operate differently.  People are expected to voluntarily cooperate in sharing information without going through all the formalities of litigation discovery.  To many attorneys, used to working with clients in litigation, it is hard to understand how or why a voluntary system would work.

The simple answer is that it is up to the attorneys and other professionals to screen out the bad apples, the clients who are inherently dishonest or who clearly aren't comfortable opening up everything.  Many of the bad apples aren't interested at all in trying to be cooperative and sharing information, so many problems are avoided.

Still, there are some problems that come out, even from honest, well-intentioned people.  Maybe the information is embarrassing or showing certain information will likely lead to bigger fights, or maybe they are getting caught in some lies and react the way many people have tried in the past -- stonewalling.

If that happened, the options for dealing with it would be:  (This is assuming that the information exists, is available to at least one person and the information is deemed, by one or more of the professionals,  relevant to an important issue.)  Here are some possible courses of action:

• Try to find the information through another source.
• The party's attorney would talk with the client to try to gain cooperation.
• The mental health professional or the financial professional would talk with the party.

Possible termination.  If none of those steps works, the professionals and the other party have the right to terminate the process or to continue the process without the information.  If the process is terminated, both sides will need to hire new attorneys to complete the legal action.  The threat of that additional expense might be enough to gain cooperation.  If the case moves to litigation, it's likely that the information can be ordered to be produced, but there's still no guarantee of compliance.  Of course, a judge can make the uncooperative party pay for it at the decision time.

Many people considering Collaborative Law wonder about how to force the other side to disclose necessary information.  In reality, it's mostly a theoretical question.  In over 10 years of doing Collaborative cases, I can't remember a single case where requested  information was withheld. That may be because the people choosing Collaborative are already willing to follow the rules and be cooperative.  In addition, the professionals are careful at the outset to not start up a case where someone likely won't abide by the rules and practices of Collaborative Law.

Bottom Line:  Don't worry about whether information will be provided.  It hasn't been a problem so far.

Collaborative Law Approved in Washington State

The Rules of Professional Conduct Committee of the Washington State Bar Association has recently issued an advisory opinion approving the use of Collaborative Law to resolve family law matters. The opinion is based on two requirements.

The first requirement is that the attorney must believe that the client's interests will be well served by utilizing the process. Presumably, the lawyer would not recommend it unless that were the case.

The second requirement is that there must be informed consent by the client. Informed consent, in this situation, means that there has been consideration of the client's objectives, the possible benefits and risks of the process, and the availability of other options. Again, those are normally discussed by the attorney and client before the process is chosen and begun.

This is another example of the increasing approval and spread of Collaborative Law through the United States. Clients should ask their lawyers about the advisability of using Collaborative Law in just about any kind of family law case.

Floridians Can Collaborate

Collaborative Practice is continuing to gain official acceptance in the U.S. In October 2007, the presiding judge in the Miami-Dade Circuit Court signed an administrative order authorizing the use of Collaborative Law there. That was the culmination of work by many attorneys in that area who put a lot of effort into getting official sanction for the new process for peacefully resolving divorces and other family law issues. At about the same time, the American Bar Association ethics committee issued an opinion validating that it is an ethical way to practice law -- an opinion widely shared throughout the U.S. and in many other countries.

Texas was the first state to get a statute passed specifically authorizing Collaborative Law for use in family law cases. Information about Collaborative Law in Texas can be found at www.collablawtexas.com or at my web site. Slowly, but surely, the process is spreading and more and more people are able to utilize the process to peacefully resolve their disputes.

The ABA Seal of Approval

Because Collaborative Law is still a fairly new approach in the law, some attorneys haven't really warmed up to the concept of doing divorces and other family law cases a different, non-traditional, way. For various reasons, often because they don't like change, they have opposed the expansion of Collaborative Law, or at least haven't been trained and don't participate in it.

Some attorneys have expressed some vague ideas that there could be some ethical problems with Collaborative Law. In February 2007, a committee of the Colorado Bar Association gave an odd advisory opinion that attorneys there should not participate in Collaborative Law because it created a situation of divided loyalties, which was based on a unique Colorado rule.

That issue should be laid to rest now, however, because the American Bar Association Ethics Committee has issued an opinion supporting Collaborative Law as long as the parties involved are thoroughly aware of how the process works. Educating clients about the process is something that is a part of every Collaborative case. It involves letting the parties know the various options they have in how legal cases can be resolved. Before a Collaborative Law case begins, both parties must understand and commit to the process. If they choose not to take the Collaborative path, they are free to try litigation or another approach.

In Texas, we have the first Collaborative Law statute passed that is now in our Family Code. We are beyond the vague ethical issues because the statute in effect endorses the process. In practice, we have created a Texas model, or approach, for Collaborative Law that involves giving the parties full information about their options and letting them make informed decisions about how they wish to proceed.

At least five other states have ethics opinions supporting Collaborative Law. Colorado has been the only state that has published a critical ethics opinion and the A.B.A. should now have put the issue to rest. It's nice to have some additional confirmation that we are participating in a helpful process for people in a difficult time. For best results, clients should thoroughly discuss all questions and concerns with their attorneys before they start the process.