Minnesota Lawyer Blog

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.

The Star Tribune ran an editorial today on Hennepin County's Early Neutral Evaluation Program ("A different divorce.") The piece is mostly high on the program, although it does mention at one point:
"Not everyone is enamored of these new efforts. Some lawyers and judges, according to Remington and others, say the approach can cause couples to be rushed, depriving them of sufficient time to process important changes, and causing them to make financial and practical decisions they later regret."

It seems with 65 percent of the cases resolving on the first meeting, this might be a real danger. Any family lawyers have any thoughts on this?

The article also cites the pioneering efforts of local attorney Stuart Webb in the collaborative law arena. Lawyers USA is about to do a story on the collaborative law model that I think raises some interesting concerns. More on that next week.