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Monday, April 9, 2007

Collaborating with the enemy?

Lawyers USA, Minnesota Lawyer's national sister publication, ran a very interesting article this week on collaborative law. Collaborative law has its roots here in Minnesota, so it is very relevant to Minnesota attorneys. Here is the start of the article:

Collaborative law hits a snag

By Dick Dahl
Lawyers USA, April 9, 2007

Collaborative law has grown steadily in popularity since Minneapolis divorce lawyer Stuart Webb first introduced the concept in the 1990s.

But since Feb. 24, practitioners and supporters have been buzzing about an unwelcome development. On that day, the Colorado Bar Association issued an ethics opinion concluding that collaborative law is unethical per se.

Collaborative law is a dispute resolution method in which lawyers and clients for both sides vow to resolve a matter without litigation. If negotiations fail, the lawyers (and their firms) must withdraw from the case, and the clients hire new counsel to take the claim to court.

The 2,000-member International Academy of Collaborative Professionals (IACP) in San Francisco reports that collaborative law is widely practiced, and increasingly, legislatures and courts are adopting rules encouraging its use. In February, the American Bar Association formally embraced the concept with the creation of the Collaborative Law Committee of the ABA Dispute Resolution Section.

But Ethics Opinion 115 may put all that at risk. The opinion by the state bar's ethics committee states that collaborative law's characteristic "four-way agreements," pacts signed by the parties and the lawyers resolving to negotiate a resolution in a non-adversarial fashion, violate the state's Rules of Professional Conduct.

It said that that collaborative agreements create a duty between a participating lawyer and the other lawyer's client, and this obligation runs afoul of state Rule of Professional Conduct 1.7(b) regarding conflicts of interest.

The committee also found fault with another aspect of four-way agreements: the signed commitment by lawyers to discontinue their representations if the parties decide to go to court.
"Because the disqualification agreement invariably interferes with … independent professional judgment in considering alternatives and forecloses courses of action for the client and the collaborative law practitioner, it violates Rule 1.7," the opinion said.

The full text is available to Lawyers USA subscribers. (Click here to subscribe.)

Minnesota Lawyer is exploring the potential impact of this ethics opinion locally in an upcoming piece for our print edition. Let us know if you have any thoughts.

1 comment:

Pauline H. Tesler said...

Hello, Minnesota Lawyer readers. It's important to keep that Colorado opinion in perspective. It's my understanding that three volunteer lawyers with no direct experience of collaborative law wrote this anomalous and not well-reasoned advisory opinion, which isn't binding even in Colorado.

The opinion, by its own terms, does not bar anyone--no client and no lawyer--from electing collaborative law or from signing documents that specify how the process will work. The opinion focuses on whether a Colorado lawyer can ethically sign a participation agreement that is also signed by the other party without running afoul of technical rules regarding conflicts.

If the signing is done on DIFFERENT pieces of paper, I believe their highly technical concerns about professional ethics would be satisfied. That should give you an idea of the intellectual scope and breadth of the opinion.

Read it to see whether you are convinced or whether, like most of us, you conclude that the writers have done a poor job of it. Their reasoning would, if followed, render unethical many customary procedural stipulations signed by both parties and their lawyers that are commonplace in litigation practice everywhere.

We have to wonder how unbiased these writers were, given that they failed even to cite, much less to distinguish, the views of the many academicians and practitioners who have weighed in on the ethics of collaborative law, none of whom have found collaborative law to be unethical. For example, of the six ethical opinions so far rendered by state bars, the five prior opinions conclude that collaborative practice is quite consistent with ethical mandates, but you'll find no careful analysis of those opinions in the Colorado piece. The writers also did not find it of interest to note that three state legislatures have enacted statutes authorizing and approving the practice of collaborative law. Yet they do manage, quite gratuitiously, to indicate how much they prefer cooperative law (which is little more than conventional settlement negotiations with a few unremarkable procedural agreements about discovery and motion practice at the front end) to collaborative law--the first conflict resolution model to distribute ANY risk of failure to lawyers as well as clients when the instruction of the clients is that the lawyers have been hired solely to help them reach settlement.

Fortunately, none of us are bound by the narrow, result-oriented reasoning of these three Colorado lawyers.

The ABA Dispute Resolution Section's committee on collaborative law and the International Academy of Collaborative Professionals' Ethics Task Force are working on a joint White Paper that will address each of the ABA model ethical rules that have a bearing on collaborative legal practice, and will--we are confident--do a more thorough and balanced job of evaluating the ethics of collaborative practice than the Colorado writers produced.

Meanwhile, let's try not to cede more authority or force to that aberrant Colorado opinion than it merits.