|
Collaborative Law and Legal Ethics: Growing Pains for an ADR Movement by Christopher M. Fairman * Collaborative law is growing up. Born almost twenty years ago out of frustration with conventional adversarial practice, collaborative law is an infant no longer. This interest-based, settlement-oriented dispute resolution process differs from others in that the parties and lawyers agree at the outset to eschew litigation at all costs - including disqualification of all counsel should the process fail. [2] It is precisely this defining characteristic that is causing collaborative law its problems. For years, those of us with an interest in the intersection of ADR and professional ethics have been pointing at collaborative law and its pinch points with the law governing lawyers. [3] In a whole host of areas - conflicts, confidentiality, informed consent, termination, and the like - collaborative law can be in tension with lawyer ethics. I have repeatedly called for clarity, guidance, and uniformity in the creation of an ethical foundation for collaborative law. [4] In 2007, collaborative law is confronting this challenge. In a trilogy of major events, the ethics of collaborative law now takes center stage. In February, for the first time, a state bar ethics committee found collaborative law per se unethical as it is conventionally practiced. [5] No longer are ethical concerns merely an academic exercise; it is reality. A second major development is the current effort to create a Uniform Collaborative Law Act. Foreshadowing a need for uniformity and guidance, the National Conference of Commissioners on Uniform State Laws (NCCUSL) appointed first a Study Committee and later a Drafting Committee for the Uniform Collaborative Law Act. [6] The NCCUSL Drafting Committee has already produced a working draft of a model act with its core feature being provisions to answer ethical concerns about confidentiality and privilege. [7] A third ethical milestone comes from the American Bar Association. In its latest formal ethics opinion, the ABA Standing Committee on Ethics and Professional Responsibility squarely addresses the compatibility of collaborative law with the Model Rules scope limitation and concludes there is no violation. [8] This is far from the last word on the ethics of collaborative law. However, when considered in combination, these three events should be encouraging for the collaborative law movement. While ethical concerns are real and potentially limiting to the growth of the practice, our existing ethics regimes and proposed modifications can respond to these challenges. What we are witnessing is merely the growing pains of an ADR process. I. The Collaborative Law Scorecard Collaborative law is a dispute resolution process where parties represented by counsel resolve their dispute themselves rather than having a ruling imposed upon them by a court or arbitrator. [9] While counsel represents the parties during the collaborative law negotiations, the role of collaborative lawyers is different from typical representation. In collaborative law, lawyers encourage the parties to engage in joint problem solving as opposed to a traditional adversarial role. The heart of collaborative law is a written participation agreement where the parties agree not to go to court for resolution of the dispute during the collaborative process. [10] If a party seeks judicial intervention, the agreement requires that counsel for all parties must withdraw from further representation. [11] Collaborative law's meteoric rise is well known. A Minnesota family law practitioner, Stu Webb, is credited as the first to articulate the concept and put it into practice around 1990. [12] Since then, thousands of lawyers have been trained in the collaborative law model; tens of thousands of cases have been resolved with it in the United States and Canada. [13] Collaborative law practice groups exist in virtually every state in the nation. [14] Indeed, major law firms are even hiring partners to head up their collaborative law sections. [15] As further testimony to its success, collaborative law is already becoming institutionalized. Several states have enacted statutes recognizing collaborative law. [16] Utah is the most recent jurisdiction to do so. [17] Similarly, a number of courts have used their own court rules to sanction collaborative law. [18] Minnesota is a recent example. In September 2007, the Minnesota Supreme Court amended the General Rules of Practice for the District Courts to define collaborative law and make clear that such cases are subject to deferral from scheduling orders. [19] More recognition of collaborative law should be expected. The largest dispute resolution organization in the world, the ABA's Section of Dispute Resolution, now has a Committee on Collaborative Law. [20] David A. Hoffman, the Chair of this new committee, offers a concise explanation for collaborative law's success: [M]ost clients in a dispute are looking for an honorable peace, not war, and collaborative lawyers can be just as zealous about seeking such a peace as litigators are about victory in the courtroom. Empirical studies to date suggest that clients in collaborative law cases are satisfied with both the process and the settlements achieved. One of the primary reasons for this success appears to be self-selection – in other words, the clients and lawyers who embrace the collaborative process tend to be those who are seeking to resolve conflict rather than prolong it. In addition, the collaborative law process creates a container for conflict – one that promotes information-sharing, problem-solving, and respectful communication. Sometimes the collaborative process enables people to do more than just settle their differences but to actually resolve them on a deeper level than is possible with the bare-knuckles negotiation that is typical in noncollaborative cases. [21] Despite these major accomplishments, collaborative law remains largely limited to divorce and family law disputes. [22] I have suggested elsewhere that it is ethical concerns about collaborative law that limit its growth outside the family law arena. [23] Prior to 2007, five jurisdictions examined collaborative law's compatibility with ethical rules. [24] While collectively these opinions raise ethical red flags, none found collaborative law impermissible. [25] This all changed in February 2007 when the Colorado Bar Association's Ethics Committee issued Formal Opinion 115 declaring collaborative law per se unethical. II. Colorado Ethics Opinion 115 Ironically, it was Colorado collaborative lawyers who asked the Ethics Committee of the Colorado Bar Association to issue an opinion on their practice - to silence the critics. [26] That did not happen. On February 24, 2007, the Committee issued Ethics Opinion 115 entitled "Ethical Considerations in the Collaborative and Cooperative Law Contexts." [27] Colorado Opinion 115 focused upon the collaborative law participation agreement and analyzed it as a nonconsentable conflict under Rule 1.7(b) of the Colorado Rules of Professional Conduct. The Ethics Committee concluded: "It is the opinion of this Committee that the practice of Collaborative Law violates Rule 1.7(b) of Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful." [28] To reach this conclusion, the Ethics Committee started with Rule 1.7(b). It provides in relevant part that a "lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to... a third person... unless (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation." [29] Applying this rule to collaborative law, the Ethics Committee found: Collaborative Law, by definition, involves an agreement between the lawyer and a "third person" (i.e., the opposing party) whereby the lawyer agrees to impair his or her ability to represent the client. In particular, the lawyer agrees to discontinue the representation in the event that the Collaborative Law process is unsuccessful and the client wishes to litigate the matter. The entry of the Collaborative Law Four-Way Agreement therefore implicates Rule 1.7(b) of the Colorado Rules of Professional Conduct. [30] Having concluded a third party conflict exists, the Committee considered whether the client could effectively waive the conflict. Under Colorado Rule 1.7, a client's consent to the representation notwithstanding a conflict is only effective where the lawyer reasonably believes the representation will not be adversely affected by the responsibilities to the third party. [31] Thus, the critical questions boiled down to the likelihood that a conflict will happen and, if it does, "whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client." [32] The Ethics Committee concluded that a client could not consent because of the significant risk that a conflict will materialize. The Committee described the situation in the following manner: In fact, the conflict materializes whenever the process is unsuccessful because, in that instance, the lawyer's contractual responsibilities to the opposing party (the obligation to discontinue representing the client) are in conflict with the obligations the lawyer has to the client (the obligation to recommend or carry out an appropriate course of action for the client). Second, the potential conflict inevitably interferes with the lawyer's independent professional judgment in considering the alternative of litigation in a material way. Indeed, this course of action that "reasonably should be pursued on behalf of the client," or at least considered, is foreclosed to the lawyer. [33] In an interesting footnote, however, Opinion 115 notes that while lawyers are conflicted from signing the four-way agreements, clients themselves were free to sign such agreements with each other. Footnote 11 states: While it is not within this Committee's province to comment on legal issues, it is axiomatic that private parties in Colorado may contract for any lawful purpose. Thus, parties wishing to participate in a collaborative environment may agree between each other to terminate their respective lawyers in the event that the process fails, provided the lawyer is not a party to that contract. Such agreements may promote the valid purposes of Collaborative Law, including incentives for settlement, generating a positive environment for negotiation, and fostering a continued relationship between the parties without violating the Colorado Rules of Professional Conduct. [34] Therefore, it appears that the Ethics Committee sees the technical act of signing the participation agreement by the lawyers as the problem, not the collaborative concept. [35] The Committee reinforced this interpretation by its analysis of cooperative law. Cooperative law is an offshoot of collaborative law with the exception that there is no disqualification provision. [36] The Committee concluded that this distinction was all-important: "Cooperative Law, which is identical to Collaborative Law in all material respects with the exception of the disqualification agreement is not per se unethical." [37] While not an automatic violation of Colorado's ethics regime, cooperative law still must be practiced within the bounds of the Colorado Rules of Professional Conduct. After exploring many of the ethical issues that are typically of concern with collaborative or cooperative law practice - confidentiality, termination, informed consent, and clients under disability - the Committee warned cooperative law practitioners to be mindful of potential ethical pitfalls and comply with all Colorado Rules of Professional Conduct. [38] While Opinion 115 is significant as the first ethics opinion to find collaborative law unethical, [39] it is inherently limited in its effect. First, the opinion applies to a single jurisdiction - Colorado. The ability to export the analysis to other jurisdictions is constrained by the Opinion's reliance on a unique version of Rule 1.7(c) that describes circumstances in which a client's consent cannot be validly obtained. [40] Since no other jurisdiction has a similar provision, the Opinion is self-limiting. Even within Colorado, the opinion has limitations. First, all opinions by the Colorado Bar Association Ethics Committee are actually nonbinding. The Colorado Bar Association is a voluntary, private organization; membership is not mandated by the state and it does not regulate the conduct of lawyers. [41] Thus, opinions are "for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel." [42] Finally, the most significant limitation comes from the text of the opinion itself. Footnote 11 appears to alleviate any negative impact on collaborative law practice. All collaborative lawyers in Colorado need do to be compliant is merely refrain from actually signing the participation agreement. Clients are free to enter into contracts with each other to follow collaborative practices unabated. In essence, Opinion 115 roadmaps an end run around its basic tenet. Not surprisingly, local and international collaborative law groups point to this type of quick fix. The Colorado Collaborative Law Professionals website now posts revised agreements available to members only. The old four-way agreement has been replaced with an agreement that each spouse signs only with the spouse's own attorney, as well as an agreement with the other spouse that if the process should fail the attorneys must withdraw. [43] Similarly, the International Academy of Collaborative Professionals (IACP) Ethics Task Force released its critique of the Colorado Opinion 115 including its suggestion to use footnote 11 as a method of continuing collaborative practice in Colorado. [44] The Task Force also reported that "several Colorado judges have opined in meetings and seminars that they would certainly enforce the terms of such a contract between the parties and require their respective lawyers to withdraw if their case went to court." [45] In the end, Colorado Opinion 115 is unlikely to have much traction outside of Colorado. The position taken by the Ethics Committee fundamentally misunderstands the fundamental principle embodied in Model Rule 1.2 that a lawyer may limit the scope or objectives, or both, of representation if the client consents after consultation. [46] Informed consent is the critical question, not who performs the perfunctory act of signing the participation agreement. [47] The Colorado Ethics Committee appears to recognize the scope limitation of Rule 1.2 as acceptable when it discusses and ultimately authorizes cooperative law. [48] The same should apply to collaborative law, but-for the Committee's strange preoccupation with attorneys signing the participation agreement. The direct effect of Colorado Opinion 115 on collaborative practice is a localized chilling effect on the growth of movement. [49] Its indirect effect is another matter. Colorado's action virtually compels other jurisdictions to take a hard look at the ethical underpinnings of collaborative law. [50] Even though Opinion 115's conclusion on collaborative law is unlikely to gain acceptance, it does highlight many additional ethical tensions that await collaborative lawyers. These include troublesome areas such as: a duty of confidentiality versus voluntary disclosure, a client's advance agreement to terminate versus a material adverse effect if the client is of limited income, a heightened need for informed consent, and the role of lawyer with a client under a disability. [51] As other jurisdictions scrutinize collaborative law, the compatibility of the law governing lawyers with collaborative practice is not a foregone conclusion. Finally, the Colorado Opinion is sure to generate increased tension between collaborative practitioners and the fledgling cooperative law movement. Prior to Opinion 115, little attention was paid to cooperative law. [52] It is sure to receive a boost in notoriety from the imprimatur of acceptability placed on it by Opinion 115. This may exacerbate friction between these two groups of ADR practitioners. [53] Hopefully dispute resolution professionals will be able to keep these tensions in check, rather than fuel them into an all-out ADR turf war. [54] III. Uniform Collaborative Law Act The need for new statutory or rule-based guidance for collaborative law is a matter of academic debate. [55] Whether or not the time is right for a new model act on collaborative law, one is coming nonetheless. The National Conference of Commissioners on Uniform State Laws (NCCUSL) is in the process of drafting a Collaborative Law Act (CLA). At the July 2006 meeting of the Scope and Program Committee of NCCUSL, the Study Committee on Collaborative Law [56] reported that there were only two state enactments at the time, plus a number of jurisdictions with local court rules providing for collaborative law. [57] The absence of pre-existing statutes was seen as a "plus factor" improving the chances of NCCUSL's impact. The Study Committee reported that "NCCUSL should set the mark in this area of the law" and predicted "great legislative success." [58] The Committee on Scope and Program unanimously supported recommending that a drafting committee be formed and approved the following motion: "RESOLVED, that the Committee on Scope and Program recommends to the Executive Committee that a drafting committee on collaborative law be formed, and that the committee be instructed to make a recommendation to the Committee on Scope and Program on the scope of the project after its first meeting." [59] The appointment of the new Drafting Committee on Collaborative Law was completed in early 2007 in preparation for the first drafting session on April 20-21, 2007, held in Salt Lake City, Utah. [60] The Drafting Committee, chaired by Commissioner Peter Munson, includes seven additional State Commissioners appointed by NCCUSL, and a Reporter, Andrew Schepard from Hofstra University School of Law. In addition, there are several ABA Advisors and other Ex Officio members. [61] Finally, there are nearly a dozen Official Observers who represent various stakeholders, such as the IACP, or are individuals with a particular expertise of value to the drafters. For example, Professor John Lande, Director of LL.M. Program in Dispute Resolution at the University of Missouri-Columbia School of Law and I are both Official Observers due to our scholarly interest in collaborative law. [62] In addition to the inaugural meeting in April 2007, a second meeting was recently held in Boise, Idaho on Oct 5-6, 2007. [63] These sessions have already produced a working draft of the Collaborative Law Act. [64] The drafting process will continue in the spring of 2008, with a first reading of the CLA to the annual NCCUSL Conference slated for July 2008. Final consideration will be in the summer of 2009. 65 While the process continues, the Drafting Committee has already made some choices that will likely have a significant impact on collaborative law. First, the CLA tentatively defines a "Dispute" as limited to essentially family and divorce law. [66] One concern among collaborative lawyers is the extent to which the process can travel outside the family law practice area. [67] If the CLA chose a transsubstantive approach, it could provide stimulus for the exportation to other types of cases such as commercial disputes, employment law matters, or malpractice claims. If the current definition remains, the CLA will not have vitality outside of the family law context. Even with a limitation in scope to family law, the CLA significantly advances collaborative law by focusing on the central elements of collaborative law practice. [68] Current state statutes vary widely in what they provide as structure for collaborative law. [69] The CLA, however, draws from current state models to define the basic tenets of collaborative law in its definition of a "Collaborative Law Participation Agreement." [70] By codifying the baseline, the CLA will likely lead to greater uniformity, while preserving individual autonomy to add other provisions to any specific participation agreement. [71] Another goal of the CLA is to describe the appropriate relationship between collaborative law and the justice system. [72] One example of this is the CLA's codification of procedural guarantees, such as a tolling of statutes of limitation. [73] The CLA also includes provisions for appropriate judicial administration of collaborative cases, such as filing a participation agreement with the court to exempt the action from scheduling orders. [74] While these provisions provide a foundation for collaborative law, the Drafting Committee decided in its first meeting to make the issue of confidentiality and privilege a central focus of the CLA. As such, "[m]any of the issues involved in the drafting of the Uniform Collaborative Law Act, particularly those involving the scope of confidentiality and evidentiary privilege, are identical to those that had to be resolved in the drafting of the Uniform Mediation Act. As a result, some of the provisions and the commentary in this Act are taken verbatim from the Uniform Mediation Act." [75] The detailed confidentiality and privilege portion of the CLA is contained in Section 7. [76] The Drafting Committee also believes that mirroring the UMA will make enactment of the CLA easier; both NCCUSL and state legislatures are already familiar with the concepts of confidentiality and evidentiary privilege because of previous experience with the UMA. [77] Finally, the CLA is significant in what it excludes. Due to the relative youth of collaborative law, care is being taken to avoid stifling the innovative possibilities of the practice. For example, the CLA does not outline a specific training program for collaborative law, even though the Drafting Committee is certainly on record as viewing adequate training as essential. [78] The Committee, however, does not wish to impose one training regimen on all jurisdictions. [79] Another major drafting exclusion is a conscious effort to avoid issues of professional ethics. According to the Drafting Committee, [t]he Uniform Collaborative Law Act defines and regulates a dispute resolution process whose central feature is representation of parties by counsel in problem solving, interest-based negotiations. The Act does not, however, regulate the professional responsibility obligations of counsel. Those obligations are established by the rules of professional responsibility enacted in each jurisdiction and by the institutions that regulate the conduct of lawyers, such as the judiciary and bar association ethics committees. [80] Notwithstanding this statement of drafting preference, it is clear that the Drafting Committee does choose to address some ethical problems with collaborative law, as the provisions relating to confidentiality and need for informed consent lie squarely with the realm of lawyer ethics. [81] The decision to ignore other ethical concerns about collaborative may constrain the potential impact of the CLA. [82] The Colorado Ethics Opinion 115 serves as a reference point. Nothing in the current draft of the CLA prevents the reasoning or result of the "nightmare" [83] Colorado Opinion. The drafting of the CLA is still in its formative stage. The Drafting Committee might revisit some of these decisions as it moves from drafting to enactment issues. The overall significance of the NCCUSL effort, however, should not be underestimated. [84] The CLA should extinguish concerns that the collaborative process is somehow suspect, or worse yet illegal. The CLA can also provide much needed uniformity for essential collaborative law practices, while maintaining opportunities for experimentation. [85] The CLA will solidify collaborative law as a legitimate ADR process while providing opportunity for its growth and development. [86] IV. ABA Formal Opinion 07-447 Much of the uncertainty generated by Colorado Opinion 115 should dissipate by the recently released ABA Formal Ethics Opinion 07-447, "Ethical Considerations in Collaborative Law Practice." [87] In this latest opinion, the ABA Standing Committee on Ethics and Professional Responsibility analyzes "the implications of the Model Rules on collaborative law practice" [88] and concludes that collaborative law does not violate the Model Rules of Professional Conduct if the client gives informed consent: 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. [89] In a nutshell, collaborative law is not per se unethical. The Committee begins its analysis by describing collaborative law as "a type of alternative dispute resolution in which the parties and their lawyers commit to work cooperatively to reach a settlement" with its roots and attributes in the mediation process. [90] Noting the rapid spread of collaborative law throughout the United States and into Canada, Australia, and Western Europe, [91] the Committee appears to credit this growth to the numerous established collaborative law organizations that "develop local practice protocols, train practitioners, reach out to the public, and build referral networks" [92] such as the International Academy of Collaborative Professionals. [93] According to the Committee, the variations of collaborative practice all share the same core elements set out in a contract, or "four-way" agreement, between the clients and their lawyers. "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." [94] The commitment to the collaborative process is ensured in the four-way agreement with a withdrawal requirement; "if the process breaks down, the lawyers will withdraw from representing their respective clients and will not handle any subsequent court proceedings." [95] The Committee then turned to the ethical landscape. Dividing the limited authorities into two camps, there are the state bar opinions treating collaborative law practice as a species of limited scope representation. These jurisdictions (Kentucky, New Jersey, North Carolina, and Pennsylvania) discuss the duties of lawyers, including communication, competence, diligence, and confidentiality, and conclude that collaborative law is not inherently inconsistent with the Model Rules. [96] "However, even those opinions are guarded, and caution that collaborative practice carries with it a potential for significant ethical difficulties." [97] And then there is Colorado — "the only opinion to conclude that a non-consentable conflict arises in collaborative practice." [98] The Committee wasted no time in selecting its team: "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" and "reject the suggestion that collaborative law practice sets up a non-waivable conflict under Rule 1.7(a)(2)." [99] According to the Opinion, "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." [100] Nothing in Rule 1.2 or its comment suggests that limiting the representation to a collaborative effort to reach a settlement is per se unreasonable. [101] In fact, Comment 6 to Model Rule 1.2 provides that a limited representation is appropriate if the client has limited objectives for the representation and limited representation includes exclusion of "specific means that might otherwise be used to accomplish the client's objectives." [102] Concluding that collaborative law is a reasonable scope limitation, the issue is reduced to one of informed consent by the client. To get a 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." [103] Specifically, the "lawyer must provide adequate information about the rules or contractual terms governing the collaborative process, its advantages and disadvantages, and the alternatives." [104] One core element of collaborative law is singled out: "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." [105] Finally, the ABA takes Colorado to task for its conclusion that collaborative practice creates a non-waivable conflict of interest under Rule 1.7(a)(2). Although the Committee agreed that the withdrawal provision of the four-way agreement creates a "responsibility to a third party" within the meaning of Rule 1.7(a)(2), this responsibility does not create a conflict of interest. [106] A conflict under Model Rule 1.7(a)(2) exists "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." [107] With collaborative law, the agreement to withdraw does not impair the lawyer's ability to represent the client. Because the client has already agreed to a limited scope representation (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." [108] Since the client specifically limits the scope of the lawyer's representation to the collaborative negotiation of a settlement, there is no foreclosing of alternatives otherwise available to the client. [109] The Committee leaves no doubt where it stands: the withdrawal agreement of collaborative law is not inherently unethical. As its first look at collaborative law, it is somewhat surprising that the ABA Opinion is not more measured, especially after specifically noting that the previous state bar opinions on collaborative law are "guarded" and stress the "potential for significant ethical difficulties." [110] This Opinion comes with little cautionary language. [111] Collaborative lawyers still must comply with the rest of the Model Rules such as competence, diligence, and communication. [112] The Opinion also explicitly reserves comment on any ethical considerations from a lawyer's participation in a collaborative law group or organization. [113] But on what has been a hot-button ethical question about collaborative law — the viability of the withdrawal provision of the four-way agreement — the Committee provides a definitive answer. [114] This new ABA Opinion has been greeted with superlatives. "[C]ivilized resolution of conflict in American society recently took a giant step forward," [115] "an important stride," [116] a "watershed moment," [117] and "reaffirms the value of the collaborative process," [118] are just some of the recent labels commentators — all collaborative law proponents — have used. There are also predictions that the use of collaborative law will increase dramatically throughout the United States. [119 Of course, it is much too early to gauge the impact of the ABA Opinion. After all, state bar ethics committees are not required to follow ABA ethics opinions. But most do. This should justifiably give collaborative lawyers a confidence boost, especially in the majority of jurisdictions that have not yet addressed the ethics of the collaborative law. V. Conclusion This has certainly been a robust year for the intersection of collaborative law and legal ethics. Three major events have emerged to shape the future of what has been called an oxymoron — "collaborative law." [120] The threat of lawyer ethical rules limiting collaborative law leaped from the law journals into reality with the Colorado Opinion. The response of the collaborative law community, typified by the IACP critique, was quick, thoughtful, and designed to corral this maverick state ethics committee. It certainly appears to have delivered an S-O-S to the ABA Standing Committee, as its rebuke of Colorado's faulty conflicts analysis makes quite clear. Throughout this ethics opinion ping-pong match, the NCCUSL Drafting Committee is hard at work to provide additional legislative support for collaborative law by promulgating a uniform act. These events of 2007 reflect collaborative law entering its adolescence. To be sure, the growth of collaborative law is not over; some challenging ethical questions remain. Collaborative law should expect continued resistance and ethical challenges from those who view the adversarial nature of representation as fundamental. But it is not only zealous advocates who challenge collaborative law. There is also an increasing risk that, as this movement matures, the nuances of collaborative thinking could create an ADR turf war between collaborative law and mediation, collaborative divorce and collaborative law, collaborative and cooperative law, or collaborative law and collaborative practice. [121] The collaborative movement will need all of its problem-solving skills if its own family starts to dissolve. * Professor of Law, The Ohio State University Moritz College of Law. [2] See Christopher M. Fairman, A Proposed Model Rule for Collaborative Law, 21 Ohio St. J. on Disp. Resol. 73, 78-80 (2005) (describing the collaborative law model). [3] See, e.g., Scott R. Peppet, Lawyers' Bargaining Ethics, Contract, and Collaboration: The End of the Legal Profession and the Beginning of Professional Pluralism, 90 Iowa L. Rev. 475 (2005); Larry R. Spain, Collaborative Law: A Critical Reflection on Whether a Collaborative Orientation Can Be Ethically Incorporated into the Practice of Law, 56 Baylor L. Rev. 141 (2004); John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 Ohio St. L.J. 1315 (2003); James K. L. Lawrence, Collaborative Lawyering: A New Development in Conflict Resolution, 17 Ohio St. J. on Disp. Resol. 431 (2002); see also Brian Roberson, Comment, Let's Get Together: An Analysis of the Applicability of the Rules of Professional Conduct to Collaborative Law, 2007 J. Disp. Resol. 255 (2007); Elizabeth K. Strickland, Comment, Putting "Counselor" Back in the Lawyer's Job Description: Why More States Should Adopt Collaborative Law Statutes, 84 N.C. L. Rev. 979, 1001 (2006) (advocating adoption of statutes to address ethical problems); Joshua Isaacs, Current Developments, A New Way to Avoid the Courtroom: The Ethical Implications Surrounding Collaborative Law, 18 Geo. J. Legal Ethics 833 (2005); Zachery Z. Annable, Comment, Beyond the Thunderdome – The Search for a New Paradigm of Modern Dispute Resolution: The Advent of Collaborative Lawyering and its Conformity with the Model Rules of Professional Conduct, 29 J. Legal Prof. 157, 168 (2004-05) ("Because of the accommodation for the adversarial paradigm on which the Model Rules were crafted, I join those authors who think that it would probably be best to push for the implementation of new ethical standards to accommodate ADR processes like collaborative lawyering."). [4] See, e.g., Christopher M. Fairman, Ethics and Collaborative Lawyering: Why Put Old Hats on New Heads?, 18 Ohio St. J. on Disp. Resol. 505 (2003); Fairman, supra note 1; Christopher M. Fairman, Why We Still Need A Model Rule for Collaborative Law: A Reply to Professor Lande, 22 Ohio St. J. on Disp. Resol. 707 (2007) [hereinafter "A Reply"]. [5] See Colo. Bar Ass'n Ethics Comm., Formal Op. 115 (2007). [6] See Fairman, A Reply, supra note 3, at 728-29 (chronicling the NCCUSL effort). [7] See National Conference of Commissioners on Uniform State Laws, Collaborative Law Act (Oct. 2007 Draft). [8] See ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 07-447 (Aug. 9, 2007). [9] See National Conference of Commissioners on Uniform State Laws, Collaborative Law Act prefatory note (Oct. 2007 Draft). [10] See Chip Stewart, Colorado Ethics Opinion Says Collaborative Law Violates Rules of Professional Conduct, 13 No. 3 Disp. Resol. Mag. 29 (Spring 2007) (describing collaborative law). [11] Pauline H. Tesler, Collaborative Family Law, 4 Pepp. Disp. Resol. L.J. 317, 319-20 (2004). [12] Stu Webb, Collaborative Law: An Alternative For Attorneys Suffering 'Family Law Burnout,' 18 Matrim. Strategist 7 (2000). [13] Fairman, supra note 1, at 83 (thousands of lawyers trained); David A. Hoffman, A Healing Approach to the Law, Christian Science Monitor, Oct. 7, 2007 (tens of thousands of cases resolved), http://www.csmonitor.com/2007/1009/p09s01-coop.html. [14] See Hoffman, supra note 12. [15] For example, prominent Chicago divorce law firm Schiller, DuCanto and Fleck LLP, has hired James R. Galvin as a partner and director of the firm's Collaborative Law Practice. John Flynn Rooney, Collaborative Method Catches on with Divorce Lawyers, Chicago Daily Law Bulletin, at 1 (Sept. 5, 2007). [16] See, e.g., Cal. Fam. Code § 2013 (2007); N.C. Gen. Stat. §§ 50-70 to -79 (2006); Tex. Fam. Code §§ 6.603, 153.0072 (2006). For a detailed discussion on the California Collaborative Law Act see Andrew Schouten, Breaking Up Is No Longer Hard To Do: The Collaborative Family Law Act, 38 McGeorge L. Rev. 125 (2007). [17] Utah recently established a mandatory divorce orientation course for all parties with minor children who file a petition for temporary separation or divorce. The course must include options available for proceeding with a divorce, including collaborative law. See Utah Code Ann. § 30-3-11.4 (effective April 30, 2007). [18] See, e.g., Contra Costa, Ca., Local Ct. Rule 12.5 (2007); L.A., Cal., Local Ct. Rule, ch. 14, R. 14.26 (2007); S.F., Cal., Unif. Local Rules of Ct. R. 11.17 (2006); Sonoma County, Cal., Local Ct. Rule 9.25 (2006); East Baton Rouge, La., Unif. Rules for La. Dist. Cts. tit. IV, § 3 (2005); Utah Code of Jud. Admin. ch. 4, art. 5, R. 40510 (2006). Of particular importance to access to legal services, Chief Judge of New York Judith Kaye recently announced plans to establish a Collaborative Family Law Center in New York City; it will provide collaborative attorneys for clients who cannot afford them. See Vivian Berger, Unaffordable Divorce, 188 N.J.L.J. 259 (April 23, 2007). [19] See Promulgation of Amendments to the Minnesota General Rules of Practice for the District Courts, In re: Supreme Court Advisory Committee on General Rules of Practice, CX-89-1863 (Minn. Sept. 26, 2007). New Rule 111.05 on collaborative law takes effect January 1, 2008. Id. [20] See Lawrence R. Mills, Members Seek A Broader Role for Peacemakers, Nat'l L. J., at S2 (Aug. 6, 2007) (describing 17,000 member Section of Dispute Resolution as world's largest and reporting on the recent formation of a Collaborative Law Committee to explore the use of collaborative law in both family and nonfamily settings); Section of Dispute Resolution: Collaborative Law Committee, http://www.abanet.org/dch/committee.cfm?com=DR035000 (last visited Oct. 14, 2007). [21] Hoffman, supra note 12. [22] John Lande, Lessons for Collaborative Lawyers and Other Dispute Resolution Professionals from Colorado Bar Association Ethics Opinion 115, http://www.mediate.com/articles/landeJ3.cfm (April 2007) ("Virtually all Collaborative Law cases have been in family matters, despite great efforts to promote it in non-family ("civil") matters."); see Gary L. Voegele, Linda K. Wray, & Ronald D. Ousky, Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better Outcomes, 33 Wm. Mitchell L. Rev. 971, 1025-26 (2007) (describing desire but lack of success in penetrating non-family law cases). [23] See Fairman, supra note 1, at 74. [24] The first jurisdiction to offer guidance was Minnesota in the form of an advisory letter opinion from Minnesota's Office of Lawyers Professional Responsibility. See Letter from Patrick R. Burns, Senior Assistant Director, Office of Lawyers Professional Responsibility, Minnesota Judicial Center, to Laurie Savran, Collaborative Law Institute (March 12, 1997). North Carolina was the first jurisdiction to issue a formal ethics opinion. See N.C. St. Bar, Formal Eth. Op. 1 (2002). In 2004, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued an informal opinion on collaborative law (authored by Professor Laurel Terry of Penn State-Dickinson School of Law). The Committee dealt with only a general question of whether the practice of collaborative law in a domestic relations context was ethical provided clients are given full disclosure and their rights waived by choosing the collaborative law method. See Pa. Bar Ass'n Comm. Leg. Eth. & Prof'l Resp., Informal Op. 2004-24 (2004). The following year at the request of a collaborative law practice group, the Kentucky Bar Association explored the general compatibility of the Kentucky Rules of Professional Conduct and collaborative family law. See Ky. Bar Ass'n Eth. Comm., Op. E-425 (2005). Similarly, New Jersey weighed in with a formal opinion in 2005. See N.J. Advisory Comm. on Prof'l Ethics, Op. 699 (2005). [25] For a thorough examination of each of these ethics opinions, see Fairman, supra note 1, at 108-116 (discussing North Carolina, Pennsylvania, and Kentucky) and Fairman, A Reply, supra note 3, at 723-24 (discussing Minnesota and New Jersey). [26] See Jane Pribek, Addressing Ethics Issues in Collaborative Divorce, http://www.wislawjournal.com/special/adr2007/ethics.html (last visited Oct. 8, 2007) (quoting co-president of Colorado Collaborative Law Professionals Mary Becker stating, "Representatives of her group asked the committee to issue an opinion, to put the detractors at ease"). [27] Colo. Bar Ass'n Ethics Comm., Formal Op. 115 (2007). [28] Id. [29] Colo. Rules of Prof'l Conduct R.1.7(b). [30] Colo. Bar Ass'n Ethics Comm., Formal Op. 115 (2007). [31] Id. [32] Id. [33] Id. [34] Id. n.11. [35] This, of course, makes no sense. If the collaborative law process creates a third party conflict because the lawyer cannot consider all strategic options, this conflict is inherent in the collaborative law process and should not hinge on a technical source of the limitation. [36] See John Lande & Gregg Herman, Fitting the Forum to the Family Fuss: Choosing Mediation, Collaborative Law, or Cooperative Law for Negotiating Divorce Cases, 42 Fam. Ct. Rev. 280, 284 (2004) (describing cooperative law). [37] Colo. Bar Ass'n Ethics Comm., Formal Op. 115 (2007). [38] Id. Ironically, it is in the discussion of cooperative law that the opinion offers useful ethical guidance for collaborative practice. See Posting of John Crouch to The Family Law News Blog, http://familylaw.typepad.com/faimly_law_news/2007/03/critique_of_col.html (Mar. 7, 2007, 12:34 AM) (noting "wise guidance" in cooperative law discussion). [39] See Jill S. Chanen, A Warning to Collaborators, ABA J., May 2007, at 22 ("[T]he opinion is significant because it is the first time that this form of ADR has been declared in violation of a state's rules of professional conduct."). [40] See IACP Ethics Task Force, The Ethics of the Collaborative Participation Agreement: A Critique of Colorado's Maverick Ethics Opinion, at 2, http://www.collaborativepractice.com/documents/IACPEthicsTaskForcearticle.pdf (last visited Oct. 1, 2007). [41] See IACP Ethics Task Force, supra note 39, at 2. [42] Colo. Bar Ass'n Ethics Comm., Formal Op. 115 (2007). [43] See Pribek, supra note25. [44] See IACP Ethics Task Force, supra note 39, at 1. [45] Id. This critique by the IACP Ethics Task Force carefully dissects the Colorado Opinion. Its thoughtful analysis exposes the weaknesses in the opinion's application of ethical rules to collaborative law and carefully explains the compatibility of collaborative law with professional ethics rules. [46] See Model Rules of Prof'l Conduct R. 1.2 (2006); ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 07-447 (Aug. 9, 2007). [47] See IACP Ethics Task Force, supra note 39, at 3-4. 48 See Colo. Bar Ass'n Ethics Comm., Formal Op. 115 (2007). 49 See Diane J. Levin, Collaborative Law Unethical Says Colorado Bar Association, http://www.mediate.com/pfriendly.cfm?id=2395 (describing chilling effect) (last visited Oct. 8, 2007); Chanen, supra note 38, at 22 (quoting Denver family law practitioner as describing situation as "a nightmare"); Hoffman, supra note 12 ("After the Colorado opinion was issued, thousands of lawyers across the United States who have been using the collaborative law process waited uneasily to see which way the regulatory winds would blow in their states."). 50 For example, the Wisconsin State Ethics Committee is studying the issue in part due to the Colorado Opinion. See Pribek, supra note25. 51 See Colo. Bar Ass'n Ethics Comm., Formal Op. 115 (2007). 52 See Chanen, supra note 38 (describing cooperative law as "practically nonexistent"). 53 See Chanen, supra note 38 (noting dilemma for the two groups). 54 See Frances Z. Calafiore, ADR Community Not Immune To Turf Wars, Conn. L. Trib. 16 (Apr. 3, 2006) (describing the turf war between collaborative and cooperative law groups). Illustrative of the type of tension that exists between these groups, consider the recent statements by collaborative lawyer Frederick Glassman. He called cooperative law an "undefined process." He feared cooperative law supporters might "grasp on to the generalities of the new [California collaborative law] statute." He further marginalized cooperative law by stating: "[r]egardless of whether attorneys are engaged in the litigation model or in some other 'cooperative law' model, attorneys should always cooperate in trying to settle their cases . . . ." Frederick J. Glassman, Family Code Section 2013 - The Official Arrival of Collaborative Law in California, Cal. Fam. L. Monthly 275, 279 (Sept. 2007). [55] Professor John Lande and I recently engaged in a colloquy on this subject in the official law journal of the ABA Section on Dispute Resolution. See generally Fairman, supra note 1; John Lande, Principles for Policymaking About Collaborative Law and Other ADR Processes, 22 Ohio St. J. on Disp. Resol. 619 (2007); Fairman, A Reply, supra note 3. [56] Prior to the appointment of the Drafting Committee, the NCCUSL had appointed a Study Committee on Collaborative Law. Commissioner Harry L. Tindall was the Chair of the Study Committee on Collaborative Law. National Conference of Commissioners on Uniform State Laws, Meeting Minutes of the Committee on Scope and Program, at 3 (July 8-9, 2006), http://www.nccusl.org/Update/Minutes/scope070806mn.pdf [hereinafter NCCUSL, Meeting Minutes]. NCCUSL Study Committees are charged with reviewing an assigned area of law in light of defined criteria and recommend whether NCCUSL should proceed with a draft on that subject. NCCUSL, NCCUSL Committees, http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=3&tabid=39 (last visited Oct. 12, 2007). [57] NCCUSL, Meeting Minutes, supra note 55, at 3. [58] Id. [59] Id. [60] Letter from Leang Sou, NCCUSL, to Drafting Committee on a Collaborative Law Act and Advisors/Observers, (Jan. 23, 2007) (describing meeting) (on file with author); Hofstra University School of Law, Uniform Collaborative Law Act, http://law.hofstra.edu/Academics/InstitutesAndCenters/ChildrenFamiliesAndTheLaw/UCLA/index.html (last visited Oct. 12, 2007) (same). [61] A complete roster of the Drafting Committee is available at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=279 (last visited Oct. 12, 2007). [62] See Email from Peter Munson, Chair, NCCUSL Drafting Committee on Uniform Collaborative Law Act, to Chris Fairman, Professor of Law, The Ohio State Moritz College of Law (Jan. 26, 2007 1:23:54 PM EST) (inviting Fairman to join the project as an Official Observer and listing other participants) (on file with author). [63] Memorandum from Andrew Schepard, Reporter, to Drafting Committee for the National Conference of Commissioners on Uniform State Laws Collaborative Law Act (Aug. 28, 2007) (transmitting first draft of the CLA and describing October meeting) (on file with author). [64] A copy of the National Conference of Commissioners on Uniform State Laws, Collaborative Law Act (Oct. 2007 Draft) is available at http://www.law.upenn.edu/bll/archives/ulc/ucla/oct2007draft.htm. Additionally, the Reporter has created a website for the CLA: http://www.law.hofstra.edu/ucla. A copy of the October draft of the CLA is also available there under the "Drafts" link. There is also a link to send comments to the Reporter and Drafting Committee. [65] See Email from Peter Munson, Chair, NCCUSL Drafting Committee on Uniform Collaborative Law Act, to Chris Fairman, Professor of Law, The Ohio State Moritz College of Law (Sept. 28, 2007 10:02:31 AM EDT) (regarding October meeting and future drafting schedule) (on file with author). [66] Section 2(c)(1) requires that a Dispute must involve one or more of the following:
National Conference of Commissioners on Uniform State Laws, Collaborative Law Act § 2(c)(1) (Oct. 2007 Draft). [67] See Frederick J. Glassman, Family Code Section 2013—The Official Arrival of Collaborative Law in California, Cal. Fam. L. Monthly 275, 279 & n.17 (Sept. 2007) (describing concern over using nonlawyer collaborative professionals and in applying collaborative law to nonfamily law matters absent clear statutory guidance). [68] National Conference of Commissioners on Uniform State Laws, Collaborative Law Act § 2(b)(1) cmt. (Oct. 2007 Draft) ("This definition of what must be included in a Collaborative Law Participation Agreement pulls together its commonly accepted elements."). [69] The California statute that took effect January 1, 2007 merely authorizes the use of collaborative law process based upon a written agreement and provides a once sentence definition of collaborative law. It is defined as a process in which the parties and professionals engaged to assist them agree in writing to use their best efforts and to make a good faith attempt to resolve disputes related to family law matters on an agree basis without resorting to adversary judicial intervention. Cal. Fam. Code § 2013 (2007); see Glassman, supra note 66, at 276 (noting "the statute does not set forth any specific protocol for the collaborative law process). Compare the California statute with North Carolina and Texas versions; each contains significantly more detail. See N.C. Gen. Stat. §§ 50-70 to -79 (2006); Tex. Fam. Code §§ 6.603, 153.0072 (2006). Section 2(b)(1) defines a Collaborative Law Participation Agreement with other Parties to a Dispute as one that provides that:
National Conference of Commissioners on Uniform State Laws, Collaborative Law Act § 2(b)(1) (Oct. 2007 Draft). This definition of what must be included in a Collaborative Law Participation Agreement pulls together its commonly accepted elements. Id. § 2(b)(1) cmt. [71] Id. ("This Section set forth a minimum floor for a Collaborative Law Participation Agreement. Parties are free to supplement the provisions contained in their own particular Agreements with additional terms that are not inconsistent with the provisions of this Section."). [72] Id. prefatory note (describing the appropriate relationship of Collaborative Law with the justice system as one of the CLA's three goals). [73] Section 4(a) provides that the "signing of a Collaborative Law Participation Agreement tolls all statutes of limitations applicable to the legal rights, claims and causes of action of one Party against another Party reasonably related to Dispute until Termination of the Collaborative Law Process." Id. § 4(a). [74] Section 6 provides for the judicial case management of collaborative law disputes including:
Id.§ 6. [75] Id.prefatory note. [76] Section 7 sets forth the Uniform Collaborative Law Act's general structure for protecting the confidentiality of Collaborative Law communications against disclosure in later legal proceedings. It is based on similar provisions in the Uniform Mediation Act, whose commentary should be consulted for more expansive discussion of the issues raised and resolved in the drafting of the confidentiality provisions of this Act. See National Conference of Commissioners on Uniform State Laws, Collaborative Law Act § 7(Oct. 2007 Draft). [77] Id.prefatory note. ("Drafting Committee gratefully acknowledges a major debt to the drafters of the Uniform Mediation Act. The drafting of the Uniform Mediation Act required the Conference of Commissioners on Uniform State Laws to comprehensively examine a dispute resolution process serving many of the same goals as Collaborative Law, and ask what a statute could do to facilitate the growth and development of that process."). [78] See id.(discussing importance of training and education). [79] Id.("Nonetheless, for fear of inflexibly regulating a still-developing dispute resolution process, training and qualifications for counsel and other professionals who participate in the Collaborative Law Process are not prescribed by this Act."). [80] Id. [81] Two of the three professed goals of the CLA involve questions of legal ethics. The first goal, establishment of minimum terms and conditions for Collaborative Law Participation Agreements, is designed to help ensure that parties considering participating in collaborative law enter into the process with informed consent. This is provided for in the CLA in Section 3(a) imposing requirements such as: the agreement must be in writing, with reasonable detail, describing the elements of Section 2(b)(1), signed by the parties and counsel, including appropriate language as to waiver. See id. prefatory note, § 3(a). Similarly, the third goal, meeting the reasonable expectations of parties and counsel for confidentiality of communications during the collaborative law process, is met by the confidentiality and privilege requirements of Section 7. See id. prefatory note, § 7. [82] As I have argued elsewhere, the best way to handle the numerous ethical tensions between collaborative law and lawyer ethics is with a new Model Rule for collaborative law. See generally Fairman, supra note 1 (advocating a new Model Rule); Fairman, A Reply, supra note 3 (reiterating my call for a new rule). While NCCUSL certainly cannot promulgate a model rule, it could do much more than a prefatory comment tabling the issue. The Drafting Committee could take a more expansive role in its commentary on the ethical compatibility of the CLA with the Model Rules. The Drafting Committee could include more provisions like confidentiality that provide ethical clarity by reinforcing a preexisting duty under the Model Rules. The Drafting Committee could be more assertive of ensuring an ethical foundation by even including new, stand-alone ethical duties for counsel. These new ethical duties contained in a substantive statute would mirror the approach that Sarbanes-Oxley took with new its new confidentiality provisions. If the Drafting Committee was uncomfortable with promulgating in this area, it could invite representatives of the ABA's Standing Committee on Ethics and Professional Responsibility or the Center for Professional Responsibility to participate in a joint drafting project. Unfortunately, it appears that providing much needed ethical guidance for collaborative law will be a missed opportunity of the NCCUSL effort. [83] See Chanen, supra note 38 (using nightmare label to describe Colorado Opinion). [84] See Lande, supra note 21 ("The NCCUSL effort, and especially the hard work of dispute resolution practitioners and organizations focusing on Collaborative and Cooperative Law, could have a very significant impact on the future of dispute resolution."). [85] As the drafters explain: Rather than enshrine a particular model of Collaborative Law Practice into statute, the Uniform Collaborative Law Act aims to establish a platform for the recognition and future development of Collaborative Law. It thus does not regulate in detail how Collaborative Law should be conducted. The Act draws this balance to promote the autonomy of the parties by leaving to them and their counsel those matters that can be set by agreement and need not be set inflexibly by statute. Furthermore, the Act anticipates the future growth and development of Collaborative Law by authorizing the judicial branch to promulgate supplemental regulations that are consistent with it provisions. National Conference of Commissioners on Uniform State Laws, Collaborative Law Act prefatory note (Oct. 2007 Draft). [86] Id. ("A Uniform Collaborative Law Act will help bring order and understanding of the Collaborative Law Process across state lines, and encourage the growth and development of Collaborative Law in a number of ways."). [87] See ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 07-447 (Aug. 9, 2007) [hereinafter "ABA Op. 07-447"]. Despite being dated in early August, the public release of the formal opinion did not occur until early October. See Email from George Kuhlman, Ethics Counsel and Associate Director, Center for Professional Responsibility, to Eric Fish, NCCUSL (Sept. 28, 2007 6:10 AM) (detailing that the collaborative law opinion had not been officially released yet and would be circulated "next week" [October 2007] despite August date on opinion) (on file with author). [88] ABA Op. 07-447, at 1. [89] Id. [90] Id. [91} Id. at 1-2. [92] Id. at 2. [93] Id. ("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."). The website of the IACP is at: www.collaborativepractice.com. [94] ABA Op. 07-447, at 2. [95] Id. [96] Id. at 2-3. [97] Id. at 3. I certainly agree with the accuracy of this statement. See Fairman, supra note 1, at 108-16; Fairman, A Reply, supra note 3, at 723-24. I am, however, troubled by the Committee's use of authority for its statement. It cites merely "Supra note 6." See ABA Op. 07-447, at 3 n.8. Footnote 6 merely states, "See http://www.collaborativepractice.com/t2.asp?T=Mission." Id. at 2 n.6. This internet citation takes one to the IACP website and the IACP mission statement. [98] ABA Op. 07-447, at 2 n.7. [99] Id. [100] Id. at 3. [101] Id. [102] See Model Rules of Prof'l Conduct R. 1.2 cmt. [6] (2006). [103] ABA Op. 07-447, at 3. [104] Id. [105] Id. [106] Id. [107] Model Rules of Prof'l Conduct R. 1.7(a)(2) (2006). [108] ABA Op. 07-447, at 4. [109] Id. [110] Id. at 2 n.7. [111] In fact, the ABA Opinion includes numerous glowing descriptions of collaborative law that collectively appear like promotional material for the collaborative law movement. Some of these descriptions include: a type of alternative dispute resolution in which the parties and their lawyers commit to work cooperatively to reach a settlement; roots in the mediation process; 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; choose options that best meet the needs of the parties; mutually acceptable written resolution of all issues without court involvement; problem-solving atmosphere; interest-based negotiation; and client empowerment. Id. at 1-2. [112] Id. at 1. [113] Id. at 1 n.2 ("We do not discuss the ethical considerations that arise in connection with a lawyer's participation in a collaborative law group or organization."); see also Maryland Bar Ass'n Eth. Op. 2004-23 (2004) (discussing ethical propriety of collaborative dispute resolution non-profit organization). [114] It is surprising that the Committee limits its analysis to Model Rules 1.2 and 1.7 after explicitly noting that other state authorities also analyze the disqualification obligation under Rules 1.16 or 5.6. See ABA Op. 07-447, at 2 n.7. While one could assume that the Committee's silence implies a lack of applicability, it is possible that these other Model Rules may have some vitality on this question. [115] Hoffman, supra note 12. [116] ABA Says Collaborative Law is Ethical, Debra Bruce Executive Coaching, http://www.lawyer-coach.com/raisingthebar/index.php/2007/10/10/aba-says-collaborative-law-is-ethical/ (Oct. 10, 2007, 12:33 PM). [117] David A. Hoffman, Lawyers Who Mediate, Not Litigate, Sacramento Bee Wire Opinion, Oct. 8, 2007, http://www.sacbee.com/846/story/421354.html. [118] Ethical Considerations in Collaborative Divorce, Posting of David C. Sarnacki to Domestic Diversions, http://domesticdiversions.com/index.php/ethical-considerations-in-collaborative-divorce/ (Oct. 11, 2007). [119] Hoffman, supra note 12. [120] Id. [121] See Calafiore, supra note 53 (describing the turf war between collaborative and cooperative law groups); Frances Z. Calafiore, Practice Makes Perfect, Conn. L. Trib. 2 (Feb. 27, 2006) (noting tension between collaborative law and collaborative practice); see also supra notes 51-53 and accompanying text. |