The Dreaded Disqualification Requirement: How to Address It With Your Clients
One of the most common complaints I hear about the Collaborative Process is the requirement that the Collaborative attorneys cannot continue to represent the clients in litigation if the process is terminated, i.e., the dreaded disqualification requirement.
I hear this from attorneys and clients alike. In talking to attorneys who harbor objections to the Collaborative Process because of this requirement, I have determined that most of them don't truly understand the purpose of the requirement.
They see only the negative ramifications and fail to see the benefits. Furthermore, they are going about it all wrong when discussing it with potential clients.
The requirement that an attorney is disqualified from representing a client after the Collaborative Process is terminated is designed to allow a more open exchange of information between the parties, which is integral to the Collaborative Process. It also frees the attorneys from worrying about using information as a weapon or for strategizing purposes to gain an advantage, as we do in the litigation process.
The disqualification requirement promotes the type of information sharing and discussions that are necessary to work toward an agreement. It is a necessary part of the process that ensures that everyone is actively working toward an agreement instead of preparing for litigation.
Without it, the Collaborative Process simply does not work.
In addition to freeing the attorneys from strategizing and looking ahead to possible litigation, the disqualification requirement also serves as an incentive to the parties to remain in the Collaborative Process. The idea of starting over with a new attorney is less than desirable to most clients, for a variety of reasons.
Clients invest time and money getting to know their attorneys and get comfortable working with them. To have to do that again if the Collaborative Process is unsuccessful can seem like a waste of their investment.
As soon as talk of terminating the process arises in a Collaborative case, the reminder that both parties "lose" their attorneys if they proceed to litigation can keep the parties committed to the process and can encourage them to see it through to a successful conclusion.
As a leader of my local Collaborative practice group, I often speak with attorneys about this issue and how to overcome it with their clients. I have found that the attorneys who are struggling with the disqualification requirement often don't understand the purpose of the requirement, along with its benefits.
However, even after reaching an understanding of the purpose and benefits, many attorneys still struggle with how to talk to clients about it. I struggled with this as well. Very often, as soon as potential clients would learn of the disqualification requirement, they would lose interest in hearing more about the process. A common response would go something like this: "You mean I have to lose my attorney if this process fails? No, thanks."
I started to analyze this problem more carefully because it really was a barrier to getting people to choose the Collaborative Process. I decided to change my approach to this issue. I stopped telling potential clients about the disqualification requirement in my initial discussion about the Collaborative Process.
I reasoned that they would hear about it eventually, before making the final decision on whether to proceed with the Collaborative Process, but why poison the water, so to speak, before the client was able to fully understand all the wonderful benefits of the process? You know what? It worked!
Once I stopped talking about the disqualification requirement in my initial consultations, I started to get more clients interested in the Collaborative Process. I often let them talk to their spouses about the process before telling them about the disqualification requirement. Of course, if asked directly about the requirement, I will address it in a positive manner at that time, in a way that conveys the importance of the requirement to the process.
But once my clients have had time to fully understand the benefits that the Collaborative Process can offer to their case, when I do finally tell them about the disqualification requirement, I find that I don't get the same level of concern or outright objection that I used to experience. In fact, since changing my approach, I have not had any clients change their mind about the Collaborative Process because they are worried about losing their attorney.
So stop telling your prospective clients that they will lose their attorney if the Collaborative Process fails in your initial consultations. There will be plenty of time to get to that before the client signs a Collaborative participation agreement.
If you focus on all the wonderful benefits of the Collaborative Process in your initial consultations and leave the disqualification requirement for a later discussion, I think you will find, as I have, that the dreaded "losing your attorney" issue is no longer an obstacle.
For more information about me and the Collaborative Process, visit my website at www.lorislaw.com.