Conflict Resolution|Ethics|Mediation

Collaborative Law Struggles Bravely

I first came upon the term “Collaborative Law” in 2006 when I met David Hoffman of Boston Law Collaborative.  David is a remarkable guy and could sell ice to an Eskimo if he thought the ice would be a benefit.  As concerns collaborative law, David is tireless in his advocacy, and he has every reason to be.  It sets lawyers to work on solving clients’ problems.  Strangely, some lawyers object on ethical grounds.  (Now, now, don’t smirk!)

The principles of collaborative law are attractively straightforward.  The parties agree to engage counsel and other professionals in making a good faith effort to resolve their dispute.  They agree to freely exchange information on the understanding that no party will subsequently introduce as evidence any information not otherwise discoverable, nor any offers or discussions of settlement; nor will they subpoena any counsel or consultant consulted during the process. 

The heart of the practice is a “four-way agreement.”  The parties — and their attorneys, who also enter into the contract — agree that, in the event that the collaborative process fails to yield an acceptable solution, the attorneys will withdraw and will not represent their clients in subsequent court proceedings.  In this way, counsel not only are undistracted by litigation advantage — they are barred from litigation entirely.

A primary resource for collaborative law practice is found at the web site of the International Academy of Collaborative Law Professionals.

David Hoffman has been working tirelessly to introduce the principles of collaborative law — which originated in the divorce setting — to commercial disputes.  A persuasive argument is set forth in his article, “Collaborative Law in the World of Business,” where he postulates that the “method should work every bit as well in non-family cases as it does in divorce.” 

And he makes a good case, at least where there is a compelling need for confidentiality and cost-savings, where an imbalance of power or resources may skew the litigation process, and where the parties anticipate future dealings with each other.  In such conditions, collaborative practice may be a real help because it focuses the parties and the lawyers on the real goal (solving the problem and getting on with business) rather than the more elusive one (winning).

The ABA Dispute Resolution Section has formed a Collaborative Law Committee Co-Chaired by David and by Lawrence Maxwell, and a Uniform Collaborative Law Act has been drafted under the guidance of a committee chaired by Peter Munson.  That Uniform Act was approved by the Uniform Law Commission (formerly NCCUSL) in July 2009. 

In addition, the ABA Standing Committee on Ethics and Professional Responsibility has published Formal Opinion 07-447, “Ethical Considerations in Collaborative Law Practice,” concluding that no ethical objection is encountered when a lawyer engages in collaborative resolution processes with the full consent of the client and, specifically, that “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.”  That Ethics Opinion notes that state bar opinions have issued in Kentucky, New Jersey, North Carolina, and Pennsylvania concluding that the practice is not inherently inconsistent with the Model Rules.  It also notes that one jurisdiction, Colorado, has concluded otherwise. 

Make that two.  In the course of its consideration prior to the action by the ABA House of Delegates in February 2010, the ABA Section of (guess what?) Litigation has found the proposed uniform act “troubling” and the agreement to withdraw “untenable.”  By letter dated April 15, 2009, the Section determined that it was impossible, as a practical matter, for a client to be fully informed at the start of the representation of the consequences of forced withdrawal of her counsel at the time it occurs, and that legislation is inappropriate when the practice at issue violates existing Model Rules. (More information on various jurisdictions’ ethics opinions may be found at the Global Collaborative Law Council.)

On its face this would not appear to be litigators’ Finest Hour.  In light of the many compelling ethics opinions to the contrary, one might hope that the litigators would say “Have a go, hope it works.”  It’s not as if the practice threatens to reduce the amount of disputes that can’t be collaboratively resolved — as Lincoln said, “There will still be business enough.” 

There was a time when, if you had a problem, you didn’t call your Mom or your wife or your priest; you called your lawyer.  And you did so because you trusted his advice and because he had skills and perspective to help you get out of it.  Now, helping someone solve their problem risks an ethics violation. 

As another great American said, “Oy, veh!”

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