LAWYER MAGAZINE: Who Is Disqualified if a Collaborative Divorce Terminates
As a family law attorney who specializes in Collaborative Divorce and Family Law, I can confirm what research shows: Collaborative Divorce tends to be successful.
What Is Collaborative Divorce?
Collaborative Divorce is a private, non-adversarial form of dispute resolution where you and your spouse retain separate, specially trained lawyers who focus solely on helping you reach agreements that work for your family. Oftentimes, you will have the help of a Neutral Collaborative Facilitator who specializes in family dynamics, childhood development, and communication to help keep the process moving forward. You will also usually retain a Neutral Financial Professional who brings efficiency to the process and can help give both of you the information and tools you need to feel comfortable with whatever agreement you reach.
If a Collaborative Divorce does not result in an agreement, or you or your spouse wish to discontinue the process, then it Terminates. This means that both attorneys and all professionals must withdraw from your matter (in other words, they are “Disqualified”), and you can move on with successor litigation lawyers, if you wish.
As I mentioned earlier, Collaborative Divorce tends to be successful, and it is relatively rare for the process to Terminate. A study by the International Academy of Collaborative Professionals (“IACP”) found that 86% of cases ended in a full agreement, with an additional 2% ending in reconciliation between the spouses. Research by the Florida Academy of Collaborative Professionals has found similar results. In my personal practice, 90+% of my Collaborative matters have ended in a full agreement between the spouses. Of course, we cannot guarantee that your Collaborative Divorce will be successful; however, chances are that it will be.
Who Is Disqualified if a Collaborative Divorce Terminates
There has been some questions in our local community as to who is Disqualified if a Collaborative Divorce Terminates. I recently wrote an article for The LAWYER Magazine, a publication of the Hillsborough County Bar Association, on the topic. You can find an excerpt below:
Collaborative Lawyers are Disqualified
Clearly, if a Collaborative matter terminates, the Collaborative Lawyers are disqualified. Florida Family Law Rule of Procedure 12.745(f)(1) specifies that, excepted under very narrow, limited circumstances, “a [C]ollaborative [L]awyer is disqualified from appearing before a court to represent a party in a proceeding related to the [C]ollaborative matter.”
Lawyers in the Collaborative Lawyers’ Firms are Disqualified
Not only are the Collaborative Lawyers disqualified in the event of termination, but Fla. Fam. L. R. P. 12.745(f)(2) provides that “a lawyer in a law firm with which the [C]ollaborative [L]awyer is associated is disqualified from appearing before a court to represent a party in a proceeding related to the [C]ollaborative matter if the [C]ollaborative [L]awyer is disqualified from doing so under subdivision (f)(1).” Accordingly, it would be improper for a disqualified Collaborative Lawyer to hand off the case file to a partner, associate, or contract attorney associated with the Collaborative Lawyer’s firm.
Collaborative Facilitators and Financial Neutrals are Disqualified
For some time in our community, there has been a question about whether the Disqualification Clause applies to Collaborative Facilitators and/or Neutral Financial Professionals. The Collaborative Law Process Act (Part III, Chapter 61, Florida Statutes), Fla. Fam. L. R. P. 12.745, and R. Regulating Fla. Bar 4-1.19 are all silent on this issue.
Fortunately, the IACP Minimum Ethical Standards for Collaborative Professionals provides the answer. Standard 4.5 states that “[a]fter Termination, a Collaborative Professional will not provide any service for the client(s) that is either (a) adverse to any other client in the terminated Collaborative matter, or (b) related to the Collaborative matter.” Standard 1.0B clarifies that the term “Collaborative Professional” applies not only to Collaborative Lawyers, but also to mental health professionals and financial professionals on the Collaborative team.
Though the IACP is not a regulatory body, and the Standards are not legally binding, the Standards are designed to establish minimum expectations for professionals and, similar to the Bounds of Advocacy, address situations where local statutes and rules provide insufficient guidance. Accordingly, we should be clear that that Disqualification Clause applies to lawyers and non-lawyers alike.
Adam B. Cordover is a Florida Accredited Collaborative Professional, a Member of the Board of the IACP, and co-chair of the IACP Ethics and Standards committee. Adam is also a co-author of an American Bar Association book on Collaborative Practice.