Confession: Letting Go Is Not as Easy as Elsa Says by Randolph (Tré) Morgan III

by Guest Blogger July 15, 2014

One of the key skills to being a good Collaborative attorney is “letting go.” In order to let a client and a couple self-determine their resolution, we have to let go of the idea of winning and losing, the idea of what “should” happen, and the idea that the “law” is the right answer for everyone, among other traditional (but fading) lawyer memes.

One thing that I didn't realize when I began my Collaborative practice is that operating outside of these ingrained lines would occasionally make me twitchy. After years of Collaborative Practice, and shelves of cases, I still struggle with this. Sometimes letting go is still hard, even though I've watched Frozen about 50 times with my daughters and can recite every word to the song.

If my client makes an informed decision to do something that is unusual, or that lies outside the bounds of their BATNA, then I sometimes hear the old school paternalistic voice saying, “They’re not doing what you would do or what the law would do, so it must be wrong.”

Of course, one of the reasons is that I have visions of that client calling me in a few years to say that they regret a decision that they made. I don’t want them to blame the Collaborative process for their retrospective regret. Or, worse yet, blame me for “letting” them make an agreement that they now regret.

The other reason is that I wonder what other non-collaborative attorneys think about agreements that lie, at least in part, outside of what an old school litigator would “allow.” Will they think less of Collaborative attorneys? Will they write off the Collaborative process as producing “weird” agreements or not protecting clients?  Will they blame the Collaborative process when a client comes to see them for an enforcement issue and there are non-traditional terms in the agreement? 

As an example, I have clients that decide to include separate property in the marital property division. I have clients that consider paying alimony beyond their spouse’s remarriage. I have clients that agree to pay alimony despite their spouse’s affair, which in North Carolina, bars alimony. I have clients that refuse alimony or child support though they are clearly eligible for support and know it.

In my area, those provisions are not the norm for non-collaborative attorneys (which is to say most other family law attorneys) in our area. They would at least raise an eyebrow, or trigger a Dr. Evil pinky finger to the corner of the mouth. Certainly some old school attorneys would flatly refuse to let a client choose some of those options no matter how well though out. That form of legal service is on its way out. But, what client wants to hear “Your attorney should never have let you agree to that” or “This is why the Collaborative process is a bad idea”, even if it is poor advice? Cue the sharks with lasers. 

Maybe I’m the only one that thinks about this issue, but I suspect that I’m not. 

A local mediator likes to say, “Once a client makes an informed decision, you have to respect it.” And I have come to follow that principle in believing that informed clients are capable of determining what will work for them, and, importantly, of dealing with the consequences if they do not like their choices in retrospect.

As Thomas Jefferson said, “How much pain have cost us the evils that never happened!” So far, my worst fears have not come to pass.  But, I have had clients that took informed and calculated risks in agreements that I would not have taken, and that did not work out for them the way they hoped. And I recognized (probably well after my colleagues) a rising anxiety in myself in those cases. 

I’m still not sure what to do with that anxiety. My reaction is to use that anxiety as a signal that I need to have one more conversation with my client about whatever decision makes me nervous. Not to talk them out of anything, but to make sure that they see things clearly and are making an informed decision. 

I’m not sure that there is anything else to be done with the feeling. But, I’d be interested to know if anyone else experiences similar thoughts and how they use them to benefit clients and the process.

Comments (2) -

bakoppe@gmail.com
bakoppe@gmail.com
9/27/2014 5:28:34 PM #

Your angst points out a huge philosophical difference between attorneys and social workers (perhaps all mental health practitioners). The lawyer's role is to advocate for his client (even the French word for lawyer is "avocat.") While social workers certainly advocate for their clients as well, we do it in a very different way. One of the basic principles of the NASW Code of Ethics is the right to "self-determination," or the right of clients to make their own decisions.

This is usually a major challenge for new social workers, who want to "save their clients" and thus protect them from making bad decisions. It has taken me many years to learn, and I sometimes have to re-learn the message, that clients have the right to make "bad" decisions. My job is to offer them options, educate them about the implications of each option, but ultimately to leave the choice up to them.

It is sometimes so hard to stand back and watch, particularly when we can envision the negative ramifications that will result from their decisions. But it is the ultimate respect for our clients to truly grant them the right to make their own decisions, even against our advice. In essence, isn't this what CP is all about? It's about them.

It sounds like your philosophy is much closer to that of NASW, rather than the ABA. I applaud you for sharing your angst, which sounds like it's directed more toward the reactions of other lawyers or clients whose decisions have gone bad. This sounds like a rich discussion for any collaborative group.
Barbara

View my profile on www.collaborativepractice.com

lbroussard@fdva.net
lbroussard@fdva.net
4/19/2015 12:50:13 PM #

Tre,

Thank you for sharing this perspective.  It's very insightful, reflects your self-awareness, and is something that I intend to share with our training faculty as we prepare for future Collaborative trainings.

Lonnie

View my profile on www.collaborativepractice.com

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