Now the mental health industry has descended like a cloud of locusts upon the emerging new dispute resolution field of collaborative law, threatening to consume it. Collaborative law, which has yet to come into its own, has begun to transmogrify into something called "collaborative practice". Instead of being a process as originally envisioned (and as this author originally was trained) in which clients choose "no-court" lawyers (usually for their divorces) and then, if needed, mutually hire various other kinds of professionals (such as property appraisers, tax experts, pension advisors, educational experts, child development or parenting specialists), these newly reconstituted collaborative law groups posit that collaborative law can and should be viewed as a "therapeutic jurisprudence" team approach in which divorce emotional and relationship issues are assumed to be addressed along with the legal issues.

Some of these team approach advocates -- and their "trainers" -- now recommend a "6-way participation agreement" to include a financial expert and psychologist or mental health counselor (aka "communications expert") along with the lawyers and clients. More and more of them (give a mouse a cookie) also have been posturing to the public (conveniently for the psychology and social worker industry), that a proper "collaborative team" will "usually include" three mental health professionals, adding individual "communications coaches" for each party along with the neutral psychologist (none of whom of course, will be doing "therapy" and it would appear that it is only the lawyers in this professional bunch who will be at risk of professional malpractice).

Not uncommonly, the"participation agreements" for these multidisciplinary teams prohibit the financial professionals from post-case solicitation of work (and, presumably, from taking advantage of vulnerable people who have come to trust them as "neutrals" by selling them annuities or tax compliance), but quite interestingly, the same or parallel contracts for the mental health personnel actually encourage post-resolution contact with the case MHPs -- providing a strong clue as to who is pushing these ideas and from where they are originating.

Why are lawyers going along with this?

Most recently, lawyers in the collaborative lawyer groups, responding to the implicit or express promise from mental health (and to a lesser extent financial planning) businesses to deliver clients to them via future referrals, have started to reconstruct their collaborative law groups to include nonlawyers as full-members, and to make advertising claims in media copy and on websites that all of these professionals are "co-equals" or "equal professionals" as "collaborative practitioners". The advertising encourages members of the public who have family law issues and cases (perhaps failed marital therapy patients who now are seeking a divorce?) to "commence the process through any door" following which the "collaborative practitioner" (being either a lawyer, financial person, or mental health person) will assist the couple to "assemble a team" that includes the other professionals. Members of the public are encouraged to contact any "practitioner" listed in these advertisements if they want to commence what is a legal case.

The IACP appears to have led the way in this marketing concept, and -- let's be blunt -- that organization would have its own self-interested motives in doing so that involve its own growth and promotion as a trade organization and future collaborative law credentialing association: increased membership, increased market for conferences and training materials to sell, increased legislative clout, and increased advertising revenues. Identical messages are delivered on both collaborative lawyers' and nonlawyer professionals' websites and in their advertising. Family lawyers who have moved into collaborative law are largely going along with this. In part, it's likely because of lawyers and judges having become inured to and stopped thinking about the vast (and arguably inappropriate) inroads that the mental health professions already have made in the family court system, including associate membership in bar associations. In another part, it's also because these lawyers are getting work from the psychologists and counselors who in turn want to reap the benefits of being brought in on the same or other of the lawyers' cases.

What's wrong with this? Many things.

One advantage touted to the public by lawyers and nonlawyer practitioners of having neutral financial, psychological, and parenting consultants readily available is that the parties can work with them without having the lawyers at every meeting, thereby potentially saving money on legal fees. However, nothing about this kind of approach necessitates that these persons be identified, committed to, and hired right at the inception of a case. It also bears keeping in mind that the savings from eliminating the lawyers' presence at all meetings will be at least partially eroded with the need for additional consultations and updates outside the presence of the parties that will occur between the neutral consultant and each of the lawyers, and possibly also between each party and his or her lawyer. The non-lawyer meetings also increase the risk that a party might feel inappropriately coerced to make concessions or disclose information that he or she should not, a risk that also is recognized in connection with mediations in the absence of counsel. And, no money is saved if, in retrospect, the consulting practitioner retained and paid at the outset was not in fact needed.

But more alarming issues involve the potential for UPL, as well as cross-referral feeder arrangements between the lawyers and nonlawyer practitioners with whom they consistently team up, and the erosion of lawyer independence and client loyalty.

The problem of unlicensed practice of law (UPL) currently flies under the radar. While much ethical focus has been on whether the "participation agreement" (also called a "4-way agreement" or "disqualification agreement") puts lawyers at odds with their bar disciplinary rules by creating various conflicts of interest, nearly no one it seems, has caught on to the problem of the UPL being touted by the "co-equal multidisciplinary team practitioners".

The problem extends beyond actual UPL to potential confusion of the public and violation of various attorney licensing regulations of advertising. Lawyers in most places are not permitted to share fees with nonlawyers, practice in firms owned by both lawyers and nonlawyers, use nonlawyers to feed business to lawyers, or list unlicensed nonlawyers as legal practitioners on stationery or advertising. The creation of "multidisciplinary practice groups" is a new phenomenon not currently addressed by lawyer regulators who are used to primarily considering only practice groups of law "firms" or explicit "lawyer referral agencies".

These groups are not merely trade associations in the nature of bar groups or clubs. Often, unlike local bar association groups, they are not "open" to any licensed attorney who wishes membership, but are closed practice groups with admissions criteria and covenants to pledge. They are formal associations of persons who market their disparate practices together, and who expect to work together regularly and to refer business formally or informally to each other. In fact, notwithstanding the claims that they exist in some abstract world to "promote collaborative law", referring work and mutually advertising for clients is what they actually exist to do. In a few cases, there is office and facilities sharing arrangements. In other cases, in an arguable violation of state "little anti-trust acts", there is a tie-in violation in which lawyer members of these mixed practice groups insist (or merely strongly encourage) clients to hire both legal counsels and these other professionals from the same advertising "roster" including all of them as "equal practitioners".

From a collaborative lawyer standpoint, consider what the practice of hiring a predetermined "team" does to collaborative law as a developing practice area with promise to expand beyond its original use solely in the divorce law field. It nips this potential right in the bud. Many substantive areas of law could be said to have "emotional" or "relationship" issues at stake: employment law, partnership law, tort law, personal injury, estate planning and probate, and so forth. It's unlikely, however, that if someone were to advertise that employment discrimination issues or estate planning could be done by nonlawyer "equal professionals" who would recruit a "team lawyer" to represent the nonlawyer's client, attorney licensing regulators and UPL committes would not immediately recognize and respond to the unlicensed practice of law, the facilitating by lawyers of the unlicensed practice of law, and the advertising free-for-all that ("appearance of impropriety") implies multiple other possible ethical violations.

So this kind of "collaborative practice" will not be suitable for these other kinds of law. To the extent the future development of collaborative becomes focused more and more on how to include and give nonlawyers seats at the divorce negotiating table, this will stymy the development of collaborative law as a viable dispute resolution method for use in anything other than family law. It will be an anomaly unique to the stranger and stranger extra-legal family law arena. (We had this once -- and "progress" then supposedly occurred when specialized family resolution procedures started changing in order to treat the persons in need of them -- women, lunatics and children -- as deserving of real due process.) The mental health industry and a small portion of lawyers will continue to benefit from these reactionary changes, but litigants, most lawyers, and the court system assuredly will not, as they have not since the rise of therapeutic jurisprudence in the early 90s. ("Those who forget the past are doomed to repeat it.")

Collaborative law is still law.

It is the practice of law when the outcome of a process is to produce legal agreements -- contracts -- enforceable by a court of law and the state's police power, and which in fact will affect an individual's legal rights for years to come. Negotiating and advising on the terms of a legal document that will affect legal rights and subject an individual to potential contempt and the police power of the state if agreed provisions are allegedly violated is the province of lawyers.

Lobbying and legislative efforts are heavy in multiple states to create "collaborative practice statutes". To the extent lawyers are regulated not by legislatures but by the judicial branch of government, no statute can adequately address the ethical problems. And they must be addressed, because if not, many of the arguments upon which UPL and lawyer ethics issues stand in other circumstances may lose viability by analogy. (If psychologists can draft parenting plans, why cannot nonlawyers draft estate planning documents? If mental health counselors are "equal practitioners" of collaborative divorce law, why can they not also do probate law -- deaths create many emotional problems for folks, and squabbling among beneficiaries affects family relationships. Etc.)

The hope of those lobbying for statutes is to finesse these other issues, rarely discussed, with a statute blessing collaborative law, however practiced (mostly unseen by judges or regulators or members of the public, in the shadow of their private "containers"), and thus create a done deal before the multitude of other ethics problems come to light. The scholars as well as the bar associations need to start giving a harder look at these problems, and address them, as well as, on a more practical note, the crippling and distortion in the development and expansion into other areas of law of what otherwise could be a promising alternate dispute resolution method.