Collaborative family lawyers must meet the same standard of practice as family law litigators

I felt it was important to comment on the recent decision of Webb v. Birkett, [2011] A.J. No. 54.

In this decision by the Alberta Court of Appeal, the court ruled that collaborative family law practitioners must meet the same standard of care as family law litigators. Have a look at the article by Cristin Schmitz in Lawyers Weekly here: http://www.lawyersweekly-digital.com/lawyersweekly/3038?pg=14#pg14
You can also read the full decision here: http://www.canlii.org/en/ab/abca/doc/2011/2011abca13/2011abca13.html

This was a case where a client sued her collaborative family lawyer for failing to provide her with proper and complete legal advice during the collaborative family law process which the client and her ex-husband were participating in. In particular, when the client instructed the lawyer that she wanted to waive receiving financial disclosure from her ex-husband regarding the value of his dry cleaning company, her lawyer did not explain the risks and losses attendant upon her waiving receipt of full information from the other side. Accordingly, the client later claimed that she made an uninformed decision regarding some of her rights when she entered into a binding separation agreement with her ex-husband.

The court ruled that the lawyer had indeed fallen below the standard of care owed to her client. The lawyer should have tried to obtain all relevant disclosure from the other side and provided a "legal model" analysis of the client's entitlements by law (in property division, spousal support and/or child support). Where a client insists that he/she does not want to obtain full disclosure from the other side and feels satisfied with "not knowing" certain information, a lawyer needs to tell the client that they cannot give proper legal advice based on the lack of information and to also advise the client that they may be accepting less or paying more in a settlement than what would be required by law. It is preferable that the lawyer communicate this in writing to the client.

I must say that this decision, albeit necessary, is nothing "earth shattering" to me or my fellow collaborative family law practitioners. We are fully aware that our primary role is to protect our clients the same way that a traditional family lawyer (ie. litigator) must. We must keep abreast of the changing law and we need to advise our clients about how the law affects them. People, including the lawyer who was sued, may have the misperception that in a collaborative family law process, the lawyers do not need to "cross their t's and dot their i's" in the process simply because the clients who have entered into the agreement seem happy with the deal they are reaching. The only difference between a settlement reached through collaborative family law process versus traditional negotiation or litigation is the tone of the process itself -- the collaborative process is premised on the parties and lawyers working collaboratively, whereas the traditional negotiation/litigation process is not. However, both processes require that clients receive thorough and well reasoned legal advice before they enter into binding agreements. The standards of that legal advice are definitely no different between the processes. (In fact, many of today's collaborative practitioners were once traditional family lawyers practicing in the court system.)