In one of my earlier blogs, I discussed an Ethics Opinion issued by the Ethics Committee of the Colorado State Bar determining that collaborative law is per se unethical because it creates a conflict of interest that cannot be waived.
Recently, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (“ABA Committee”) issued its Formal Opinion 07-447 (August 9, 2007) determining that a lawyer may represent a client in the collaborative law process:
“Before representing a client in the collaborative law process, a lawyer must advise the client of the benefits and risks of participation in the process. If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law process. A lawyer who engages in collaborative resolution processes still is bound by the rules of professional conduct, including the duties of competence and diligence. (Id. at 1).
In reaching this conclusion, the ABA Committee noted that collaborative law “is a type of alternative dispute resolution. . . [having] its roots in, and [sharing] many attributes of, mediation.” (Id.) Created in Minnesota in 1990, collaborative law practice has spread throughout the United States, Canada, Australia and Western Europe. While different protocols of this type of practice exist, they all share the key element of using a “disqualification stipulation” or “four-way agreement” in which “. . . the parties commit to negotiating a mutually acceptable settlement without court intervention” (Id. at 2) by using open communication and sharing information. If the matter is not resolved, the attorneys withdraw so that the clients must obtain new counsel to pursue the matter in court.
The ABA Committee noted that with the exception of the Colorado State Bar, most state bars which have issued opinions have analyzed collaborative law practice as a “species of limited scope representation,” discussing the duties of lawyers in such situations.
Taking its lead from these other state bar opinions, the ABA Committee agreed that collaborative law practice and the provisions of the four-way agreement represent a permissible limited scope representation. The ABA Committee specifically rejected the notion (of the Colorado State Bar) that collaborative law presents a non-waivable conflict of interest.
Rather, the ABA Committee concluded that as long as the lawyer meets his obligations of competence, diligence and communication, the limited representation of a client in a collaborative law setting is permissible. Among other things, the informed consent of the client must be obtained. This requires
“. . . that the lawyer communicate adequate information and explanation about the material risks of and reasonably available alternatives to the limited representation. The lawyer must provide adequate information about the rules or contractual terms governing the collaborative process, its advantages and disadvantages, and the alternatives. The lawyer must also assure that the client understands that, if the collaborative law procedure does not result in settlement of the dispute and litigation is the only recourse, the collaborative lawyer must withdraw and the parties must retain new lawyers to prepare the matter for trial.” (Id. at 3).
The ABA Committee then noted that when a client gives her informed consent, the lawyer’s agreement to withdraw if the matter is not resolved, is actually consistent with the scope and purpose of the limited representation. Thus, as long as the attorney fulfills his ethical obligations of competence and diligence, he has fulfilled his obligations within the scope of the limited representation. In this light, no conflict of interest arises and the client is free to pursue all available alternatives should the collaborative law process not resolve the dispute.
. . . Just something to think about.