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Colorado Ethics Committee Concludes Collaborative Law Per Se Unethical, Cooperative Law Not

by Gini Nelson
March 2007

From Gini Nelson's Blog Engaging Conflicts

Gini Nelson
As previously posted in EngagingConflicts here, there is a significant ethical critique of Collaborative Law, and a growing movement for the practice of Cooperative Law. The main issue is Collaborative Law’s requirement of mandatory attorney disqualification if the process is unsuccessful. Cooperative Law is defined in the Colorado Ethics Committee’s Opinion as identical to Collaborative Law, but without the mandatory attorney disqualification agreement.

This is the Conclusion from Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts (Adopted February 24, 2006)(note: date is probably a typo, as this Opinion has just been released):

The Colorado Rules of Professional Conduct prohibit a lawyer from participating in Collaborative Law so long as a contractual obligation exists between the lawyer and the opposing party whereby the lawyer agrees to terminate the representation of the client. Absent such a contractual obligation, a lawyer may participate in the process referred to as Cooperative Law provided that the lawyer complies with all of the Rules of Professional Conduct.

The Opinion lays out the Committee’s analysis, and also provides an extensive discussion of the “myriad potential ethical pitfalls” in a Cooperative Law practice, which include provisions relating to terminating the attorney-client relationship; communications with the client (concerning the applicable range of alternative courses of action in the client’s case); considerations of whether the client is under a disability (particularly if there is a history of domestic abuse in the family law context); and Cooperative Law organizations (as possibly impermissible referral services). These issues are also potentially relevant in jurisdictions where a Collaborative Law practice is not per se unethical.

Colorado does not have a mandatory bar association, and the Committee’s opinion is not per se binding on attorneys. However, it is a powerful statement about the practice of Collaborative (and Cooperative) Law in Colorado, and of the potential issues everywhere.

This is how the Colorado Ethics Committee describes itself (from its website):

The Colorado Bar Association Ethics Committee is a standing committee of the Colorado Bar Association, staffed by approximately 90 Colorado attorneys, existing for the purpose of giving ethics advice to Colorado attorneys. The Committee will answer written requests for ethics advice subject to certain exceptions such as those listed below. The Committee will issue Formal Ethics Opinions concerning topics of general interest. . . .

The Ethics Committee is NOT associated with the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel. Committee Opinions, whether informal written opinions or published formal Ethics Opinions, are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, Attorney Regulation Counsel, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.

The opinion is not yet posted at its website. If you would like a copy, please send an email to gn@gnconflictmanagement.com, with “Opinion” in the subject line, and I’ll send back a copy.

Biography


Gini Nelson is a sole practitioner in Santa Fe, New Mexico. Her practice emphasizes private dispute resolution, including distance dispute resolution, and domestic, bankruptcy and bankruptcy avoidance law.



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Website: www.gininelson.com

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