Dear Collaborative Colleagues:
I apologize in advance for sending a *very* long post, but it contains
some exceptionally good news: the American Bar Association Ethics
Committee is about to issue a formal opinion supporting the use of
Collaborative Law and Collaborative Practice. For those of us who
practice in the U.S., this means that our various state ethics
committees will probably follow suit. (The ABA's opinions are not
binding on the states, but are highly influential.) The ABA opinion
squarely rejects the reasoning of the Colorado Bar Association ethics
opinion which was the only state ethics opinion to date that said that
CL was unethical. Another positive feature of the ABA opinion is its
positive mention of IACP and its mission. The document that I have
received contains a version of the opinion that has not been officially
released yet and therefore it is conceivable that there might be minor
revisions before it becomes final. In the past, however, such opinions
from the ABA do not undergo much if any change from the time when they
are tentatively released to the time they go final. (A friend of mine
in the ABA tells me that the opinion will be formally issued in
mid-October.) For those of you who can access the CollabLaw Group
files, I have posted a PDF copy there. For those of you who have had
difficulty accessing such files, I am attaching the text, without the
footnotes, here in this message - not sure whether the Yahoo system will
allow such a long message, but we shall see. There will also be copies
of the opinion posted shortly at the IACP web site and at the web page
for the Collaborative Law Committee of the ABA Section of Dispute
Resolution: http://www.abanet.org/dch/committee.cfm?com=DR035000.
Copies of this opinion will also be available at the IACP Forum in
Toronto from the IACP Ethics Task Force. In the meantime, it is a time
to celebrate a very important milestone. Best regards, David Hoffman
AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
Formal Opinion 07-447 August 9, 2007
Ethical Considerations in Collaborative Law Practice
[Summary: Before representing a client in a 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.]
In this opinion, we analyze the implications of the Model
Rules on collaborative law practice. Collaborative law is a type of
alternative dispute resolution in which the parties and their lawyers
commit to work cooperatively to reach a settlement. It had its roots in,
and shares many attributes of, the mediation process. Participants focus
on the interests of both clients, gather sufficient information to
insure that decisions are made with full knowledge, develop a full range
of options, and then choose options that best meet the needs of the
parties. The parties structure a mutually acceptable written resolution
of all issues without court involvement. The product of the process is
then submitted to the court as a final decree. The structure creates a
problem-solving atmosphere with a focus on interest-based negotiation
and client empowerment.
Since its creation in Minnesota in 1990, collaborative
practice has spread rapidly throughout the United States and into
Canada, Australia, and Western Europe. Numerous established
collaborative law organizations develop local practice protocols, train
practitioners, reach out to the public, and build referral networks. On
its website, the International Academy of Collaborative Professionals
describes its mission as fostering professional excellence in conflict
resolution by protecting the essentials of collaborative practice,
expanding collaborative practice worldwide, and providing a central
resource for education, networking, and standards of practice.
Although there are several models of collaborative practice,
all of them share the same core elements that are set out in a contract
between the clients and their lawyers (often referred to as a "four-way"
agreement). In that agreement, the parties commit to negotiating a
mutually acceptable settlement without court intervention, to engaging
in open communication and information sharing, and to creating shared
solutions that meet the needs of both clients. To ensure the commitment
of the lawyers to the collaborative process, the four-way agreement also
includes a requirement that, if the process breaks down, the lawyers
will withdraw from representing their respective clients and will not
handle any subsequent court proceedings.
Several state bar opinions have analyzed collaborative
practice and, with one exception, have concluded that it is not
inherently inconsistent with the Model Rules. Most authorities treat
collaborative law practice as a species of limited scope representation
and discuss the duties of lawyers in those situations, including
communication, competence, diligence, and confidentiality. However, even
those opinions are guarded, and caution that collaborative practice
carries with it a potential for significant ethical difficulties.
As explained herein, we agree that collaborative law
practice and the provisions of the four-way agreement represent a
permissible limited scope representation under Model Rule 1.2, with the
concomitant duties of competence, diligence, and communication. We
reject the suggestion that collaborative law practice sets up a
non-waivable conflict under Rule 1.7(a)(2).
Rule 1.2(c) permits a lawyer to limit the scope of a
representation so long as the limitation is reasonable under the
circumstances and the client gives informed consent. Nothing in the Rule
or its Comment suggest that limiting a representation to a collaborative
effort to reach a settlement is per se unreasonable. On the contrary,
Comment [6] 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."
Obtaining the client's informed consent 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 also
must 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.
The one opinion that expressed the view that collaborative
practice is impermissible did so on the theory that the "four-way
agreement" creates a non-waivable conflict of interest under Rule
1.7(a)(2). We disagree with that result because we conclude that it
turns on a faulty premise. As we stated earlier, the four-way agreement
that is at the heart of collaborative practice includes the promise that
both lawyers will withdraw from representing their respective clients if
the collaboration fails and that they will not assist their clients in
ensuing litigation. We do not disagree with the proposition that this
contractual obligation to withdraw creates on the part of each lawyer a
"responsibility to a third party" within the meaning of Rule 1.7(a)(2).
We do disagree with the view that such a responsibility creates a
conflict of interest under that Rule.
A conflict exists between a lawyer and her own client under
Rule 1.7(a)(2) "if there is a significant risk that the representation
[of the client] will be materially limited by the lawyer's
responsibilities to ... a third person or by a personal interest of the
lawyer." A self-interest conflict can be resolved if the client gives
informed consent, confirmed in writing, but a lawyer may not seek the
client's informed consent unless the lawyer "reasonably believes that
[she] will be able to provide competent and diligent representation" to
the client. According to Comment [1] to Rule 1.7, "[l]oyalty and
independent judgment are essential elements in the lawyer's relationship
to a client." As explained more fully in Comment [8] to that Rule, "a
conflict exists if there is a significant risk that a lawyer's ability
to consider, recommend or carry out an appropriate course of action for
the client will be materially limited by the lawyer's other
responsibilities or interests.... The conflict in effect forecloses
alternatives that would otherwise be available to the client."
On the issue of consentability, Rule 1.7 Comment [15] is
instructive. It provides that "[c]onsentability is typically determined
by considering whether the interests of the clients will be adequately
protected if the clients are permitted to give their informed consent to
representation burdened by a conflict of interest. Thus, under paragraph
(b)(1), representation is prohibited in the circumstances the lawyer
cannot reasonably conclude that the lawyer will be able to provide
competent and diligent representation."
Responsibilities to third parties constitute conflicts with
one's own client only if there is a significant risk that those
responsibilities will materially limit the lawyer's representation of
the client. It has been suggested that a lawyer's agreement to withdraw
is essentially an agreement by the lawyer to impair her ability to
represent the client. We disagree, because we view participation in the
collaborative process as a limited scope representation.
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. A
client's agreement to a limited scope representation does not exempt the
lawyer from the duties of competence and diligence, notwithstanding that
the contours of the requisite competence and diligence are limited in
accordance with the overall scope of the representation. Thus, there is
no basis to conclude that the lawyer's representation of the client will
be materially limited by the lawyer's obligation to withdraw if
settlement cannot be accomplished. In the absence of a significant risk
of such a material limitation, no conflict arises between the lawyer and
her client under Rule 1.7(a)(2). Stated differently, there is no
foreclosing of alternatives, i.e., consideration and pursuit of
litigation, otherwise available to the client because the client has
specifically limited the scope of the lawyer's representation to the
collaborative negotiation of a settlement.
David A. Hoffman, Esq.
Boston Law Collaborative, LLC
99 Summer Street - Suite 1600
Boston, MA 02110
Phone: 617-439-4700 x201
Fax: 617-439-0700
Email: DHoffman@xxxxxxxxxxxxxxxxxxxxxxxxxx
<mailto:DHoffman@xxxxxxxxxxxxxxxxxxxxxxxxxx>
Web: www.BostonLawCollaborative.com
<http://www.BostonLawCollaborative.com>
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