John,
It is correct to include that the continuation of representation would not be a
collaborative law process. In the IACP research it would be reported as a
terminated case.
In Texas, we would follow the wording of the Participation Agreement:
"If the collaborative law process is terminated, both collaborative lawyers
shall immediately withdraw. ...Notice of withdrawal of a collaborative lawyer
does not necessarily terminate the collaborative law process; however, in order
for the collaborative law process to continue, the client whose collaborative
lawyer has withdrawn must engage a new collaborative lawyer who will agree in
writing to be bound by this Participation Agreement."
The draft of the Uniform Law Commission's Collaborative Law Act provides in
Section 4:
A collaborative law process terminates when all parties have or should have a
reasonable belief that the process is over because:
...(2) except as otherwise provided by subsection (e), a
party discharges a collaborative lawyer or a collaborative lawyer withdraws
from further representation of a party.
(e) Notwithstanding the discharge or withdrawal of a collaborative lawyer, a
collaborative law process continues if not later than 30 days after the date
that the written notice required by subsection (d) is received by the parties:
(1) the unrepresented party engages a successor
collaborative lawyer; and
(2) in a signed record:
(A) all parties consent to continue the
process by reaffirming the collaborative law participation agreement;
(B) the agreement is amended to identify
the successor collaborative lawyer; and
(C) the successor collaborative lawyer
accepts the representation.
Section 8 states:
(a) Except as otherwise provided in subsection (c), a collaborative lawyer may
not:
...
(2) represent the party in the matter or substantially related matter after a
collaborative law process terminates.
I agree with CarlMichael Rossi that to do otherwise has many problems, and I
suggest you "should not" do it (even if you "can") and you should have
protocols and agreements in place in the future to deal with this issue.
Personally, I have withdrawn from two cases that terminated for this reason and
both clients understood the requirement.
Peace, Gay G. Cox
________________________________
From: John McDaniel <jmcdaniel@xxxxxxxxxxxxxxxxx>
To: "CollabLaw@xxxxxxxxxxxxxxx" <CollabLaw@xxxxxxxxxxxxxxx>
Sent: Friday, May 1, 2009 7:10:07 PM
Subject: [CollabLaw] Continuing representation
I have a collaborative case where my colleague and his client have had a
falling out and he is withdrawing from her representation. His client wishes
to continue to try to settle without going to court, but does not intend to
retain new counsel. My client wishes that I continue to represent him, with
the clear understanding that I could not proceed with litigation. My
question is, can I continue to represent him? Our local protocols do not
cover this situation.
Thanks in advance,
John M. McDaniel
Helon & Manfredo, Attorneys at Law
1318 East Shaw Ave., Ste. 180
Fresno, CA 93710
559/226-4420
559/226-1524 (fax)
Certified as a Family Law Specialist
By the State Bar of California Board of
Legal Specialization
