Court considers rules for implementing collaborative law statute
Court considers rules for implementing collaborative law statute
Senior Editor
Figuring out the qualifications for the participating attorneys and letting clients know the potential costs and providing help for those who cannot afford them were issues raised by the Supreme Court February 9 when considering procedural and conduct rules needed to implement a collaborative law statute.
The Legislature last year passed an act establishing a collaborative law process for family law cases, but made it effective 30 days after the court approved procedural amendments to the Family Law Rules of Procedure and professional conduct regulations in the Rules Regulating The Florida Bar.
The Family Law Rules Committee proposed Family Law Rule 12.745 and Bar Rule 4-1.19 to carry out that law.
Under the collaborative law, parties with a family law dispute would be able to each retain an attorney, and a neutral mental health counselor, and a financial advisor would be involved to help the parties reach an agreement outside the courtroom. The process could begin before or after litigation, although, any final agreement would be ratified by a judge in court.
If the collaborative process fails, the attorneys would not be able to represent the parties in the succeeding litigation, and new lawyers would have to be hired.
Justice Barbara Pariente noted that while the procedural and conduct rules address the collaborative process and the duties of lawyers, there’s nothing addressing certification or training standards for participating lawyers.
“It was the perspective of the [Family Law] Rules Committee that we were best equipped to engage in that process once we had the rule of procedure and the rule of professional conduct in place,” replied Judge Laurel Lee, chair of the rules committee.
Added another committee member, Robert Merlin, “I personally feel the [court’s] Dispute Resolution Center is the logical place for this to be done.. . . This is just one of a number of hurdles we would have to get over.”
He added that mediators existed several years before there were training and certification standards.
Justice Peggy Quince noted the center filed a comment that it was not the best entity to take on such training and certification.
Pariente asked what assistance was available for parties who could not afford to hire attorneys and mental health and financial counselors and the success rate of the collaborative process.
Merlin said the Florida Academy of Collaborative Professionals is studying the success rate in Florida, but a national study has found an 80 percent success rate. He also said there are pro bono or reduced rate programs in Tampa, Orlando, Boca Raton, Gainesville, Jacksonville, and elsewhere; “It’s basically going on all over the state.”
“We recognize that this process is not for everyone, but litigation isn’t for everyone either. Mediation isn’t for everyone. This is another tool in the toolbox for professionals to provide to the families,” Merlin said.
Miami attorney Ed Rubinoff, based on his own experience with collaborative law, spoke against the proposed rules. (Ironically, Merlin was his attorney in a failed collaborative process that ended up in litigation.)
He said parties need to be warned about the potential expense and the details of the process. The collaborative system typically consists of several “sessions,” usually around two hours each. The attorneys and experts may meet an hour before the session and again for an hour after the session, plus the attorneys will probably spend additional time with their clients, Rubinoff said.
“That’s about $6,000 for the meeting and that doesn’t take into account all of the other expenses that take place between meetings,” he said.
In his case — which did not involve any child care or related issues since he and his ex-wife were in their 70s — they had seven “team meetings” in an ultimately unsuccessful process that cost more than $100,000. They then had to start over with fresh attorneys and go to litigation, Rubinoff said.
Another problem, he said, is if, as in his case, an unresolvable issue arises after a few sessions, the clients may be reluctant to stop the collaborative process – because of the time and money they’ve already invested – and go to litigation. Rubinoff said in such cases attorneys should have an obligation to advise their clients that it might be best to end the collaborative process and go to trial. He suggested clients could save money by using their collaborative attorneys for the litigation, but Justice Fred Lewis said that would defeat the purpose of collaboration.
But he did press Rubinoff’s point to Merlin.
“I think that’s a fair comment; ‘I’m getting involved in this and I have no idea how long this piece of string is going to be,’” Lewis said.
Merlin said such a requirement would “apply to every piece of litigation in Florida” but added he always tries to provide his clients with an estimate of costs. He also said some of the work product from a collaboration may be used in litigation, helping to cut those expenses.
The case is In Re: Amendments to Rule Regulating The Florida Bar 4-1.19 and Florida Family Law Rule of Procedure 12.745 (Collaborative Law Process), case no. 16-1685.
