Family Law attorney, Divorce Lawyers Bernardsville New Jersey NJ

973.425.9001

Klaiman & Carney, LLP
1099 Mt. Kemble Avenue
Morristown, New Jersey 07960
On the Country Mile

Traditional divorce does not need to be stressful and financially draining. Klaiman & Carney’s attorneys understand the difficulties families face and offer sensitive representation. They will help you reach an amicable settlement and move beyond divorce to focus on your future.

ADVOCACY IN THE COLLABORATIVE SETTING

In the litigation model, the parties each hire an attorney and effectively “battle” through the divorce process, often ending up in court where a judge - and not the parties - makes the decisions. The role of an attorney in the divorce litigation process has been compared to that of a gladiator who believes that the arena will allow only one victor. This “win/lose” mentality can overtake the entire process with each side trying to “get the most” they can even if it is something that they may not really want or need in the first place.

The collaboratively trained attorney is hired by a party for the limited purpose of assisting that party in reaching an agreement with their spouse or partner through the collaborative process. The collaborative attorney’s role is guided and controlled by the retainer and participation agreements. As provided in the participation agreement, the collaborative attorney cannot represent the party in any litigation other than an uncontested divorce. If a negotiated settlement cannot be reached and the parties decide to terminate the collaborative process, then counsel for both parties must withdraw and the parties must begin with new counsel – an intentionally high stake consequence designed to foster commitment and resolution.

As licensed attorneys we are bound by our Rules of Professional Conduct (“RPCs”) regardless of the approach chosen by the client to dissolve the marriage. Of particular importance in the collaborative context are the following:

RPC 1.2(c) pertaining to the scope of representation;
RPC 1.3 pertaining to diligence; and
RPC 1.6 addressing confidentiality of information.

RPC 1.2(c) provides that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Since the collaborative process provides representation limited to collaborative negotiation for the purpose of settlement and representation in uncontested proceedings, the collaborative attorney must ensure that the client is entering the process with informed consent, after full consideration of the client’s obligations, and the risks and benefits of the collaborative approach and other alternative processes.

RPC 1.3 states “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” This means that an attorney should act with commitment and dedication to the interests of the client, whether working collaboratively or not.

RPC 1.6(a) which addresses confidentiality of information states that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation…” Attorneys must preserve the attorney-client privilege. However, once the parties enter into the collaborative process and sign the participation agreement, the agreement’s terms can modify the attorney's duties of confidentiality to the party. The party’s consent in the collaborative participation agreement may allow the attorney to share the party's information with the collaborative team but not with anyone outside the collaborative process. If the client asserts privilege, the attorney must respect the privilege. If the attorney determines that the information should be disclosed under the terms of the agreement and the client refuses, the attorney must consider advising the party that the collaborative process must be terminated and the attorney must also consider a withdrawal if the information is not shared.

As a means of complying with the Rules of Professional Conduct, the collaborative attorney must educate the client about the core principles of the collaborative process.

The Advisory Committee on Attorney Ethics and the American Bar Association have approved of Collaborative Practice as dispute resolution method for matrimonial matters. It is now an option for divorcing couples who, along with their attorneys, agree to resolve their dispute amicably by not going to court. This process encourages the involvement of mental health professionals and financial experts, focuses on the best interest of the children and helps lay the foundation for a healthier relationship after the divorce.

Core Collaborative Principles:

1) the commitment not to litigate or to threaten litigation;
2) voluntary full disclosure of all information related to the collaborative matter;
3) commitment to negotiating a mutually acceptable settlement which meets the needs of both parties and their family;
4) commitment not to take advantage of mistakes made by the other party; and,
5) withdrawal and disqualification by all the collaborative professionals if the collaboration fails.

In general, the attorney’s duty is to determine what the client wants and to champion the client’s cause through a process of advocacy. The collaborative attorney continues this role in providing legal advice and counsel to his or her client and assuring that the client’s rights are protected. Counsel and clients, however, engage in negotiations that are interest-based, rather than position-based. In interest-based negotiations, attorneys become joint problem-solvers in a process that assumes mutual gain is both possible and desireable. As advocates in the collaborative divorce process the collaborative attorney supports the client to ensure that their voice is heard while working with the collaborative team members to accomplish a “win/win” outcome. Accordingly, the collaborative attorney is not the same “zealous advocate” for his or her client as in the litigation model. Instead, the collaborative attorney is a “zealous advocate” for the well being of the transitioning family unit.