Winnie Huff published in The Collaborative Roadmap, Winter, 2013
Forms. The word does not typically generate much excitement. Yet we all rely upon forms and other practice aides to help us practice effectively and efficiently. In addition, forms which are
accepted as standard practice (think Texas Family Law Practice Manual) create a common language. That common language improves our communication
and our service to our clients. When viewed from this perspective, forms become (at least a little) more exciting. As a committee dedicated to forms, we have three process goals for 2013: (1) to raise awareness about how the recently revised CLI-TX
forms can aid your practice, (2) to make the forms and handouts section of the website more user friendly, and (3) to engage the state-wide collaborative community in the process of revising and updating the remaining forms and client handouts on the CLI- TX website.
With respect to our first goal, if you have not looked on the CLI-TX website in awhile, you may not realize that the Practice Aides Committee and its subcommittees have updated or created the
following forms to be in conformity with the recently enacted Collaborative Family Law Act:
• Collaborative Family Law Participation Agreement Team Model
• Short Form Highlights of Participation Agreement Team Model
• Collaborative Family Law Participation Agreement Lawyer Only Model
• Short Form Highlights of Participation Agreement Lawyer Only Model
• Informed Consent Disclosure Statement
• Family Violence Conflict Questionnaire
• Reasonable Steps to Address Family Violence Concerns
In this update, our focus is on informed consent and how the revised Participation Agreements and a new form entitled “Informed Consent Disclosure Statement” can assist lawyers with obtaining informed consent from their clients. Lawyers risk significant liability for failing to obtain effective
informed consent from their clients about any course of action. (See Jack Emmott, III and Larry Doherty’s article “Informed Consent and Avoiding Liability
by Accepting Responsibility” in this issue of the newsletter.) With the passage of the Collaborative Family Law Act, Texas codified certain aspects of
the lawyer’s responsibility with respect to informed consent (see Texas Family Code Section 15.111).
The revised Participation Agreements and the Informed Consent Disclosure Statement help the process at any time and that the lawyer as
well as the lawyer’s firm must withdraw should the collaborative process terminate with the exceptions set out in Sections 15.106(d), 15.107 and 15.108(c) (see Texas Family Code Section 15.111). In addition, there are requirements related to domestic violence and informed consent when a client is considering entering into the collaborative process (see Texas Family Code Section 15.112). As mentioned above, how the new and revised forms help a collaborative lawyer meet these standards will be discussed in a later edition of the newsletter.
The first prong of the informed consent requirement is quite fact intensive, and obviously an assessment of that nature by the lawyer with the client is not something lawyers avoid malpractice claims around this issue. (Note: This update does not address the new forms. The revised Participation Agreement does, however, include a specific and requirements related to domestic violence and informed consent which will be covered in a future newsletter.)
Collaborative lawyers must meet a high burden with respect to a client’s informed consent.
The three-pronged standard set forth in the Texas Family code requires that before a client signs a participation agreement, the lawyer must: (1) assess with a client the factors the “lawyer reasonably believes relate to whether a collaborative family law process is appropriate”; (2) provide the client with information “that the lawyer reasonably believes is sufficient for the prospective party to make an informed decision about the material benefits and risks of a collaborative family process as compared to the material benefits and risks of other reasonably available alternatives for resolving the proposed collaborative matter, including litigation, mediation, arbitration or expert evaluation”; and (3) advise the client that requesting tribunal intervention terminates the process, that participation in the process is voluntary, that any client can terminate acknowledgment by the clients that they have made known to their respective lawyer the relevant facts and assessed with their lawyer whether or not the collaborative process is appropriate.
To help lawyers meet the second prong of the informed consent requirement, the “Informed Consent Disclosure Statement” which is directed to clients (and which replaced the old form entitled “Collaborative Law Disclosure Statement”) sets out detailed information about the various legal process alternatives. The language used to describe the attributes of each process is deliberately neutral, as one person’s risk may be another person’s benefit. (e.g. If a client’s goal is to “have their day in court”, then the privacy of the collaborative process might be viewed as a risk or non-benefit. If a client’s goal
is to keep the family business out of the public spotlight, then the privacy of collaboration might be viewed as a material benefit.) The Informed Consent Disclosure Statement covers the process options
listed in the statute and includes an introductory note to the client emphasizing that no process option can guarantee a specific outcome. As further protection, in the revised Participation Agreement, the clients acknowledge receipt, understanding and discussion of this Informed Consent Disclosure Statement with their respective lawyer.
The concepts embodied in the third prong of the informed consent requirement were part of the original collaborative law statute, albeit without the formal label of informed consent. The revised Participation Agreement covers each aspect of
the third prong stating the terms under which the process terminates, that the process is voluntary, that the clients may terminate the process at any time, and that the lawyers (and their law firms)
may not represent the clients in court except under certain limited circumstances.
The new Informed Consent Disclosure Statement and the revised Participation Agreements were designed to make it easier for collaborative lawyers to meet the statutory requirements when enrolling a client in the collaborative process. Check them out on the CLI-TX website.
In keeping with our second goal, we have begun reorganizing the forms and handouts on the website. Going forward, we intend to group the forms by categories such as “Client Assessment” or “First Joint Meeting”. We are also changing
the names of some of the forms so that they match their more commonly used titles. This reorganization is an ongoing process. If you have trouble finding a form or handout on the website, please let us know.
With respect to our third goal, much thought has been given to developing a process for receiving and incorporating feedback from members across the State on the forms and handouts. We recognize that each member’s perspective and experience is different and valuable. Nevertheless, creating a process that cost-effectively allows for state-wide input is challenging. First, there is no money in
the CLI-TX budget to pay for members to travel
to meetings (and as every volunteer knows, travel costs are just a fraction of the real cost of volunteer participation) and second, group drafting of documents is tremendously time consuming.
To maximize each member’s ability to provide input while minimizing costs, our plan is to send an email to each of our members roughly twice a year attaching a small number of forms (3-6) that are currently under revision. The email will allow each member (you!) to redline suggested changes
directly on the form and return it to us. In addition, the email will link to a short survey that we have developed. The survey will ask a few demographic and contact information questions about the respondent and request feedback on the attached forms. After we process member feedback, the committee will revise the form and then email
the revised form back out to the membership for additional feedback. Once that feedback has been processed, the committee will finalize the form and send it to the CLI-TX board for approval.
Given the complexity of collaborative practice, we will never be able to create one form that “always” works best (and there is a positive side to that). By synthesizing input from collaborative practitioners across our state, our intent is to provide forms
and handouts that serve as starting points for the “best practice” of collaborative family law in Texas, thereby enabling us to communicate more effectively with each other about our practices and to provide the best service to our clients.
Make no mistake: we genuinely want your feedback. Please take the time to respond to our emails and surveys. While no form can ever
substitute for dedicated professionals using their skills and experience to help their clients, our hope is that the revised forms and handouts will be tools which help us continue to build and strengthen
our collaborative practice and community.
Best wishes for a Happy New Year that includes many collaborative cases!
Winnie Huff is Chair of the Practice Aides Committee and is a partner at Calabrese Huff in Dallas, Texas
Mar 21, 2013