Putting a Kinder Face on Litigation
Illustration by Jim Frazier
By 1990, Stuart G. Webb, a family law practitioner in Minneapolis, had grown weary of witnessing the damage wrought by the take-no-prisoners approach to litigating domestic relations cases. So he developed another way of handling those cases. Today, Webb is widely recognized as the inventor of collaborative law.
Webb’s approach has gained widespread support because it offers a kinder, gentler alternative to the warfare of a trial, especially in domestic relations cases. Borrowing principles of mediation, collaborative law involves an agreement between disputing parties and their lawyers to reach a settlement without going to court.
A key element of this collaboration is a commitment by the lawyers that, if the collaborative process breaks down, they will withdraw from representing their clients and refrain from involvement in any subsequent court proceedings.
But does that requirement create a potential ethics pitfall for the lawyers?
Last year, the Colorado Bar Association’s ethics committee issued an opinion that collaborative law violates the state’s legal ethics code because “a lawyer participating in the process enters into a contractual agreement with the opposing party, requiring the lawyer to withdraw in the event that the process is unsuccessful.” That requirement creates a conflict of interest for the lawyer, stated the committee, which noted that an agreement without the attorney-withdrawal requirement would pass muster under the state ethics code. Ethics Opinion 115 (Feb. 24, 2007).
So far, Colorado is the only state that has reached that conclusion about collaborative law practice. And recently the ABA sided with states that have found no inherent ethics problems with collaborative law.
Rule 1.2 of the ABA Model Rules of Professional Conduct states that a lawyer “may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent,” according to the association’s Standing Committee on Ethics and Professional Responsibility in Formal Opinion 07-447 (Conflicts of Interest in Collaborative Law Practice) (PDF), issued on Aug. 9. The Model Rules serve as the basis for most state ethics codes for lawyers.
INFORMED CONSENT IS CRITICAL
The opinion notes that Comment 6 to Rule 1.2 provides that a limited representation “may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives.”
The opinion emphasizes, however, that obtaining the client’s informed consent is critical. That requires the lawyer to advise the client of the benefits and risks of participating in a collaborative law arrangement, including the fact that if it doesn’t result in a settlement, the lawyer must withdraw and the client must retain new counsel to handle the matter at trial.
The ethics committee rejected the notion that a collaborative law arrangement sets up a nonwaivable conflict under Model Rule 1.7, which states that a conflict of interest exists “if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”
In the committee’s view, “When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation.”
Web extra: “Kinder, Gentler Collaborative Divorce Also Costs Less,” ABAJournal.com, Dec. 18
Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility.
