Don't Tell

It is the end of the first semester of teaching collaborative divorce at the University of Maryland School of Law.  We're busy evaluating the students' final simulations of meetings from a collaborative divorce (12 hours of simulations - what were we thinking?).  When we first devised these simulations, we thought we were evaluating our students.  Certainly, that is one of the things we're doing, as our students expect to obtain a grade.  What is more educational from this evaluation process is seeing how well we taught what we wanted to teach.  What we've found is that we generally did a very good job of teaching collaborative divorce.  There were a few things we need to do differently.  What exactly we need to change is patently obvious.  The biggest struggle for our students struggled was understanding privilege and confidentiality in the collaborative process.  That issue is complicated and bears discussion.
Most people have heard of attorney-client privilege.  They know, from TV and movies, that when they meet with a lawyer, anything they say to the lawyer cannot be repeated to anyone else.  The privilege belongs to the client, not the lawyer.  The rules related to privilege mean that the lawyer cannot tell ANYONE anything the client tells them unless the client gives informed consent to the revelation.  Collaborative practice does not change those rules.  Even though the process is transparent, even though the parties agree that they will reveal anything that is relevant and necessary to reach a durable agreement, that doesn't mean that there is no attorney-client privilege in the process. There certainly exists such a privilege, and that creates a tension in the collaborative process.  Even though the client's refusal to waive the privilege to reveal a material fact could cause the lawyer to withdraw from the collaborative process, that doesn't meant that making the revelation is a fait accompli.  It is not.  When faced with a secret, the lawyer's job is to work with their client, to explore the "secret", to discern the reason the client does not want to reveal it, to educate the client why the revelation is necessary and explore what effect the secret would have, not only to the collaborative process, but also to the existence of a durable, acceptable agreement.  Finally, the lawyer needs to work with the client on an appropriate way to reveal that hidden fact so that it can be placed in context and the client's needs and interests are protected.  Then, and only then, can the client give informed consent to reveal the confidence and the lawyer to share it.  It's the same whether we are in the collaborative process or in litigation.  Here in the Trenches.