Sometimes we take for granted that we can be objective for the benefit of our clients. They come to us embroiled in the emotional breakdown of a marriage, and we’re faced with the challenge of separating our professional judgment from one-sided compassion and empathy for the client. We also face the challenge of balancing collaboration against the mandate of zealous advocacy. Failure to maintain a check on our own emotions makes it impossible to do either and can hinder our ability to render accurate and sound legal advice. And even if we remain objective, it is sometimes easier to proceed down the path of least resistance and hold-back rather than challenge our own client’s inappropriate position or demands.
In other instances, past negative experiences with another professional can cause us to forego objectivity and kindness and instead shift our focus to obstinacy and avoidance. Within our own practice group, the Board has been made aware of some problems that appear to have arisen from these issues, for example, preferential lists that do not include all members of WFCL. This is one of many issues we want to address in this column. After all, one point of WFCL is to help us all grow our professionalism.
While it is certainly appropriate to advise a client that some professionals are easier to work with than others, attorneys should be cautious when offering such comments about other attorneys. To say that one attorney is better than another or that another attorney doesn’t know what they’re doing could run afoul of the Florida Rules of Professional Conduct, as well as the Florida Family Law Bounds of Advocacy.
Preferential lists and disparaging comments about other members also violates Section 5.7 of the WFCL bylaws. This provision was designed to encourage members to include all members in the process, even the ones for which there are personality conflicts. It is natural to hope that our client’s spouse chooses to use certain professionals over others. Personality preferences are part of human nature. We are all free to voice our opinion to our clients as to our preferences, but it would be inappropriate for a member of WFCL to target other WFCL members for exclusion. At the same time, it is important that members, who feel frustrated and shut out, express their concerns to leadership and self-examine their contributions to past cases. It underscores the importance of a post-case debrief.
If we become too wrapped up in our clients’ emotions or our prior experiences, such that we freeze-out or black ball another member, the mission of our organization and the philosophy of the collaborative movement fails. Sometimes tough cases bring about regrets, but we each should be humbled enough to improve our own professionalism with every conversation, phone call, letter, email, and meeting. While it may seem that the chance for reconciliation among counsel is less likely than for the people who were actually married to each other for years, hope springs eternal. We all have a tough task, but working to improve professionalism will enhance this new practice field with benefits to the parties and their children.
WEST FLORIDA COLLABORATIVE LAW BYLAW 5.7:
Section 5.7 MEMBERSHIP TERMINATION.
The Corporation, acting through the Board of Directors, may terminate the membership of a member if such member engages in any conduct or activity that materially interferes with or conflicts with the purpose of this Corporation, including, but not limited to, a substantial and material violation of these By-Laws, the provisions of the Participation Agreement, or of the rules of this Corporation, as they may be adopted and/or amended from time to time. Furthermore, the Corporation, acting through the Board of Directors, shall terminate the membership of a member if such member no longer meets the requirements for membership, is no longer in good standing with The Florida Bar or other applicable professional licensing body in the State of Florida, has failed to attend five regular meetings of the Corporation within a calendar year without an excuse that is approved by the Officers, or has not paid membership dues within thirty (30) days of billing. Membership shall also terminate upon the resignation or death of a member. Termination of membership shall be recorded in the membership book of the Corporation and the rights and privileges of a member shall cease immediately upon termination of membership.
Stephen A. Pitre is a collaborative family law attorney in Pensacola, Florida at Clark Partington.