Ohio Rules of Professional Conduct, Alternative Dispute Resolution and the Ohio Collaborative Family Law Act

Ohio Rules of Professional Conduct, Alternative Dispute Resolution

 and the Ohio Collaborative Family Law Act

The OCFLA[1] was originally conceived in 2007, by members of a Collaborative Law sub-committee of a Supreme Court Advisory Committee on Alternative Dispute Resolution for Children and Families.  Five (5) years later, the 129th General Assembly passed the Ohio Collaborative Family Law Act (OCFLA), effective on March 22, 2013.[2]  In so doing, the legislature provided Ohio families with a common sense approach to avoiding antagonistic and costly divorce litigation.  The legislature saw fit to codify what is commonly known as Collaborative Practice[3] and added this contractually-based, voluntary method for solving family law issues, to Ohio's existing portfolio of alternative dispute resolution processes.  The OCFLA joined the previously enacted Uniform Arbitration Act[4] and the Uniform Mediation Act[5] as the three (3) alternatives to litigation for families facing end-of-marriage and child-related legal issues. Each of the four (4) methods (litigation, arbitration, mediation and now, collaboration) has distinct characteristics, and lawyers have a vital, yet varying, role in each process.  The public, and the legal profession, are in need of clarity regarding these roles.  This responsibility now falls to the Ohio Supreme Court.

At its core, the OCFLA is based upon three (3) foundations: (a) limited representation by the two attorneys hired by the husband and wife to serve as collaborative lawyers; (b) full and voluntary disclosure of all material information; and, (c) testimonial privilege for all participants in the event of impasse and termination of the process.  ORC 3105.47 reiterates that the professional responsibility obligations and standards applicable to lawyers are not affected by the OCFLA. 

The Preamble to the Ohio Rules of Professional Conduct explains that a lawyer can function as evaluator, negotiator, advisor and/or advocate.[6]  The rules also set forth lawyers' ethical responsibilities in regard to particular lawyer-client relationships.  Lawyers are required to be sure clients are acting with informed consent[7], procedurally and substantively, and lawyers are  generally required to respect limitations clients may request in regard to representation; i.e.: they can limit the scope of a lawyer’s representation.[8]

Under the heading of a lawyer's role as counselor and advisor, the Comments go so far as to recognize that “advice couched in narrow legal terms may be of little value to a client and that a lawyer's responsibility, as advisor, may include indicating that more may be involved than strictly legal considerations.”[9]  Moreover, the Comments point out that “family matters can involve problems within the professional competence of psychiatry, clinical psychology, or social work; business matters can be with the competence of the accounting profession or of financial specialists.”[10] 

Rule 2.4 goes so far as to specifically point out that “a lawyer may be hired as an arbitrator, a mediator or as a third-party neutral in a non-representational function.”  The rules recognize that “alternative dispute resolution has become a substantial part of the civil justice system.”[11] 

“As an evaluator, a lawyer examines a client’s legal affairs and reports about them to the client or to others.”[12]  This is fully consistent with the collaborative lawyer’s function in Collaborative Practice; to help the client understand and evaluate the procedural and substantive consequences of proposed courses of action. 

Collaborative Practice is fundamentally understood to be an interest-based negotiation (as opposed to positional bargaining). “As negotiator, a lawyer seeks a result advantageous to the client and consistent with requirements of honest dealings with others.”[13] The Collaborative Participation Agreement sets forth the clients’ intent to use their lawyers to find a way to meet as many interests as possible (for both clients) without sacrificing too many opposing interests.  

When it comes to a lawyer's advocacy function, however, the Ohio Rules of Professional Conduct seem to turn away from alternative dispute resolution.  The Preamble says, “As, advocate, a lawyer asserts the client’s position under the rules of the adversary system.”[14]  This is the rub for lawyers participating in a collaborative matter; the first lesson of collaborative practice is: Do not adopt positions. Collaborative lawyers may not appear before a court to represent a party in a proceeding related to the collaborative family matter[15]; the adversary system is not part of a collaborative process. Collaborative lawyers are not hired to use legal procedure for the fullest benefit of the client's cause[16]; they are hired to help the clients find the two best solutions for their family.  Collaborative lawyers are not hired to marshal evidence competitively by contending parties[17]; they are hired to make timely, full, candid and informal disclosure of information without formal discovery.[18]

The OCFLA is the evidence of just how substantial alternative dispute has become in our civil society.  With the advent of ORC 3105.43, two (2) lawyers can be hired to assist two (2) people (a husband and a wife), in representational capacities, with or without the assistance of a third party neutral, and, at least during the collaborative process,  as it pertains to the two lawyers, without an option for use of the adversary system. Most lawyers and most clients, nonetheless, remain confused about the role of advocacy.

The Ohio Rules of Professional Conduct are all about self-regulation of the legal profession and the profession's special role in society.[19] In addition to providing for the possibilities of limited scope representation and the requirements of informed consent, the rules also require competency[20], diligence[21], reasonable communication[22] and respect for client confidentiality[23].  With the advent and evolution of alternative dispute resolution models, society's expectations of the legal system, and of those charged with administering it, have also evolved. Our precepts for functioning in society must keep up with these movements (such as the OCFLA), or questions regarding competency and diligence and reasonableness will no doubt create unnecessary disappointments and misunderstandings for clients and lawyers alike. It is time for collaborative, mediation and arbitration to be acknowledged for what they have become: mainstream.  A re-frame of the Rules of Professional Conduct will enable participants to sit in the front of the bus if you will and it will help the public avoid the additional harm family law litigation often inadvertently inflicts.

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[1] Ohio Revised Code 3105.41 to 3105.54

[2] In large measure adopting most provisions of Uniform Collaborative Law Act, NCCUSL, 2010.

[3] As defined by the International Academy of Collaborative Professionals, “Collaborative Practice is a voluntary dispute resolution process in which parties settle without resort to litigation. In Collaborative Practice: 1. The parties sign a Collaborative Participation Agreement describing the nature and scope of the matter; 2. The parties voluntarily disclose all information which is relevant and material to the matter that must be decided; 3. The parties agree to use good faith efforts in their negotiations to reach a mutually acceptable settlement; 4. Each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding; 5. The parties may engage mental health and financial professionals whose engagement terminates upon the undertaking of any contested court proceeding; and, 6. The parties may jointly engage other experts as needed.

[4] Ohio Revised Code 2711.01 to 2711.24

[5] Ohio Revised Code 2710.01 to 2710.10

[6] Ohio Rules of Professional Conduct, Preamble, paragraph (2)

[7] Ohio Rules of Professional Conduct, Rule 1.0(f), comment [6]

[8] Ohio Rules of Professional Conduct, Rule 1.2

[9] Ohio Rules of Professional Conduct, Rule 2.1, Comment [2]

[10] Ohio Rules of Professional Conduct, Rule 2.1, Comment [4]

[11] Ohio Rules of Professional Conduct, Rule 2.4, Comment [1]

[12] Ohio Rules of Professional Conduct, Preamble, paragraph (2)

[13] Ohio Rules of Professional Conduct, Preamble, paragraph (2)

[14] Ohio Rules of Professional Conduct, Preamble, paragraph (2)

[15] Ohio Revised Code 3105.45, and compare Ohio Rules of Professional Conduct, Rule 3.1

[16] Compare, Ohio Rules of Professional Conduct, Rule 3.1, Comment [1]

[17] Compare, Ohio Rules of Professional Conduct, Rule 3.4, Comment 1

[18] Ohio Revised Code 3105.46

[19] Ohio Rules of Professional Conduct, Preamble, paragraph (5) and (11)

[20] Ohio Rules of Professional Conduct, Rule 1.1

[21] Ohio Rules of Professional Conduct, Rule 1.3

[22] Ohio Rules of Professional Conduct, Rule 1.4

[23] Ohio Rules of Professional Conduct, Rule 1.6

What is the collaborative family practice team and who are the members of the team?

Collaborative family team members often include: Lawyers with specialized training in the collaborative divorce process.

• A professional coach that has training in communication facilitation whose job it is to look after the emotional well-being of the participants and make sure there is minimal damage and disruption.
• A child psychologist or specialist that looks after the needs and future development of the children (if there are children involved).
• An accountant or financial advisor that has training in areas such as asset valuations, cash flow, and the tax implications of various income and asset structures.
• An attorney who specializes in retirement plans such as pensions, 401ks, and other similar investments to determine the valuations and tax implications of such plans.
• An appraiser that is an expert in determining the value of real estate and other property.

What does collaborative practice mean?

Collaborative practice is the divorce model by which divorcing and separated couples seek to carry out the process in a cooperative and collaborative way. It involves attorneys with specialized training in this field who represent their clients but are committed not to go to court. During the collaborative process, both parties have several meetings with their attorneys and other professionals who are part of the team with the end goal of coming up with a reasonable resolution that each party can live with. One of the main goals of the collaborative practice model is to bring the divorce to a conclusion in a friendly and respectful way and avoid children having to be subjected to litigation that can often be emotionally damaging.

What are the best interests of my children?

Ever wonder how your children are feeling about your litigated divorce or the fighting in your home? If you think you are doing them a favor by not taking care of the change that needs to happen, consider these drawings. 

Parents who have not developed the capacity to put their own insecurities aside, often unwittingly, hurt their children. Moms and Dads often forget the wisdom of King Solomon...not missed by the young person who created this collage... 

                                                                                          

Talk to me about the promise of Collaborative Family Law and how divorce professionals can assist parents in need of change move on with their lives. Do it for the sake of your kids, if not yourself as a loving parent.

Spousal Support in Cincinnati

If you are considering termination of your marriage, and you live in southwestern Ohio, one of the issues you will need to settle upon with your spouse is what amount of alimony, or spousal support, if any, is reasonable and appropriate. The Courts of Common Pleas, Division of Domestic Relations, in Butler, Clermont, Hamilton and Warren counties are required to follow the guidelines set forth by the state legislature in Ohio Revised Code Section 3105.18.  Unlike the calculation of child support, there is no formula to calculate spousal support; only a list of thirteen specific factors, plus a fourteenth which includes any information which may be relevant and an equitable guide the judges and magistrates in each county.  Individually the judges have wide discretion determining what is equitable and what is reasonable and what is appropriate; only abuses of discretion are reversible, and that is very difficult and expensive to show.  A different outcome can result from the same facts depending upon which county you live in, and which judge or magistrate is assigned to your case. So what are you to do?

The thirteen factors need to be discussed and they include such things as your relative earning abilities; the duration of your marriage; the standard of living you established during your marriage; and your lost income capacity due to marital responsibilities.  Moreover, in determining whether spousal support is reasonable, and in determining the amount and terms of payment, each spouse is considered to have contributed equally to the production of marital income.  How will you have such conversations?

The assistance of an experienced family law mediator or Collaborative lawyer can be instrumental in avoiding a nasty court battle where little, if any, conversation about the relevant factors takes place until well after emotions are strained and resources depleted.  If you choose Collaborative Family Law or mediation, you can have safe conversations about the factors which are important to each spouse in a clam and non-adversarial setting. You will give yourself the opportunity to control your own outcome as opposed to handing it over to the lawyers and judges. It is all a matter of agreeing with your spouse about how you wish to go about living through change. This can be very intimidating; however, there are Collaborative professionals interested in helping folks find new ways of moving on when things just aren't working out. Please give us a call and check out the Collaborative Law option for yourself and your family.

Divorce Negotiations

Mediation and Collaborative Law are alternative dispute resolution (ADR) models rooted in the principles of interest-based negotiation.  In divorce negotiations, many people, lawyers and clients alike, have a very difficult time distinguishing between “positions” and “interests”. When tensions run high, positional bargaining can displace interest–based bargaining very quickly, and often unintentionally.  This happens out ignorance, fear of trying something different and even, sometimes, attitudinal indifference on the part of lawyers, “collaborative” in label only.  When this happens in mediation or a Collaborative Law case, the alternative nature of ADR is lost, and old-fashion positional bargaining, the strategic and non-transparent, high and low game, is supplanted therefor.   

If a couple wises to end their marriage by dissolution, based upon mutual agreements, as opposed to contested divorce, workable solutions must be negotiated.  If a couple is prepared to articulate and clarify what is really important, or at stake, in regard to all areas of concern, their chances of avoiding adversarial proceedings are greatly enhanced.  The interests in most divorce cases include: what is best for the kids; what arrangements will provide financial security to both spouses?  Positions do not speak directly to such concerns, and by their nature, inhibit constructive conversation.

To find answers to the questions which come up in divorce, an opportunity to examine the context of what is going on from each person’s point of view is most helpful. The situation demands inspection from individual perspectives, as well as mutual perspectives, as divorce is a hybrid situation, or state of being, between independence and co-dependence, with aspects of both dynamics in play. Discussions of what previous attempts have been made to address various points of disagreement, as opposed to casting blame on a particular person, and how such attempts have either helped or hindered the situation, are what have been proven to be the best and easiest way to actually bring about positive change.  Such conversations, free of blame, and focused on what is really at stake, are what it takes to move on with life with the dignity and respect all divorcing couples say they want. That too is an example of an “interest” and what underlies the choice of Collaborative Family Law.

Collaborative Law is a Process

I understand the Collaborative Process to be about the way couples and their lawyers go about reaching consensus and agreements about property and children. To me this does not necessarily mean the result will be outside of the range of reasonably expected outcomes were the case to be tried. To me, the process is a way of avoiding the subterfuge, the strategizing, the expense and the waste of time and energy and loss of control which accompanies divorce litigation. It does not mean the outcome, in terms of time with the children or division of assets or support payments will be any different than the neighbor’s outcome. It will simply come with more understanding, less time and money spent, and more energy channeled to the things and values clients hold dear.

So, how we go about the Collaborative Process matters. A top-down approach places primacy on reasonably expected outcomes based upon experience with the legal principles and factual applications. No blustering, no threats, no depositions; just honest and balanced advice and counsel, from each side of the aisle.  A bottom-up approach places primacy on the couples’ budgets, the children’s developmental stages; the standards of living established during the marriage recognizing two houses will take the place of one.  My understanding of the Collaborative Process is that it is a way to help separating couples reach a middle ground holistically; some meetings will emerge from the top, and some from the bottom; it all depends upon timing and feelings.  If the professionals are not in sync with this phenomenon and each other, trouble looms large on the Collaborative horizon.

If Collaborative professionals are agreeing to do Collaborative work to meet a client’s shallow interests or fear-driven desires to avoid an outcome which a judge or a magistrate might otherwise view as equitable, such professionals are falling short of the Collaborative movements’ mission. It is easy to say, “Well at least they are avoiding litigation,” however, such disingenuous sentiments will never result in Collaborative Process being the default way to go.