{"id":207,"date":"2009-08-18T18:55:03","date_gmt":"2009-08-18T22:55:03","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=207"},"modified":"2009-08-18T18:55:03","modified_gmt":"2009-08-18T22:55:03","slug":"collaborative-law-struggles-bravely","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2009\/08\/collaborative-law-struggles-bravely\/","title":{"rendered":"Collaborative Law Struggles Bravely"},"content":{"rendered":"

I first came upon the term “Collaborative Law” in 2006 when I met David Hoffman of Boston Law Collaborative<\/a>.\u00a0 David is a remarkable guy and could sell ice to an Eskimo if he thought the ice would be a benefit.\u00a0 As concerns collaborative law, David is tireless in his advocacy, and he has every reason to be.\u00a0 It sets lawyers to work on solving clients’ problems.\u00a0 Strangely, some lawyers object on ethical grounds.\u00a0 (Now, now, don’t smirk!)<\/p>\n

The principles of collaborative law are attractively straightforward.\u00a0 The parties agree to engage counsel and other professionals in making a good faith effort to resolve their dispute.\u00a0 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.\u00a0<\/p>\n

The heart of the practice is a “four-way agreement.”\u00a0 The parties — and their attorneys<\/em>, who also enter into the contract — agree that, in the event that the collaborative process fails to yield an acceptable solution, the attorneys\u00a0will withdraw and will not represent their clients in subsequent court proceedings.\u00a0 In this way, counsel not only are\u00a0undistracted by litigation advantage — they are barred from litigation entirely.<\/p>\n

A primary resource for collaborative law practice is found at the web site of the International Academy of Collaborative Law Professionals<\/a>.<\/p>\n

David Hoffman has been working tirelessly to\u00a0introduce the principles of\u00a0collaborative law — which originated in the divorce setting — to commercial disputes.\u00a0 A persuasive argument is set forth in his article, “Collaborative Law in the World of Business<\/a>,” where he postulates that the “method should work every bit as well in non-family cases as it does in divorce.”\u00a0<\/p>\n

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.\u00a0 In such conditions, collaborative practice may be a real help because it focuses the parties and the lawyers\u00a0on the real goal\u00a0(solving the problem and getting on with business) rather than the more elusive one\u00a0(winning).<\/p>\n

The ABA Dispute Resolution Section has formed a Collaborative Law Committee Co-Chaired by David and by Lawrence Maxwell<\/a>, and a Uniform Collaborative Law Act<\/a> has been drafted under the guidance of a committee chaired by Peter Munson.\u00a0 That Uniform Act\u00a0was approved by the Uniform Law Commission<\/a> (formerly NCCUSL) in July 2009.\u00a0<\/p>\n

In addition, the ABA Standing Committee on Ethics and Professional Responsibility has published Formal Opinion 07-447<\/a>, “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\u00a0and, 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.”\u00a0 That Ethics Opinion notes that state bar opinions have issued in Kentucky<\/a>, New Jersey<\/a>, North Carolina<\/a>, and Pennsylvania<\/a> concluding that the practice is not inherently inconsistent with the Model Rules.\u00a0 It also notes that one jurisdiction, Colorado<\/a>, has concluded otherwise.\u00a0<\/p>\n

Make that two.\u00a0 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.”\u00a0 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<\/a>.)<\/p>\n

On its face this would not appear to be litigators’ Finest Hour.\u00a0 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.”\u00a0 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\u00a0business enough.”<\/a>\u00a0<\/p>\n

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.\u00a0 And you did so\u00a0because you trusted his advice and because he had skills and perspective to help you get out of it.\u00a0 Now, helping someone solve their problem risks an ethics violation.\u00a0<\/p>\n

As\u00a0another great American said, “Oy, veh<\/a>!”<\/p>\n","protected":false},"excerpt":{"rendered":"

A proven method of problem-solving in family disputes is encountering professional challenges to broader application. Shame.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,35,14],"tags":[8,10,31],"class_list":["post-207","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-ethics","category-mediation","tag-adr","tag-conflict-management","tag-negotiation"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/207","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=207"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/207\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=207"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=207"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=207"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}