FROM THE MAY ABA JOURNAL
A Warning to Collaborators
Colorado bar ethics panel takes aim at a growing ADR practice
By Jill Schachner Chanen
One of the most rapidly expanding forms of alternative dispute resolution in family law may have found its growth slowed.
In February, the Colorado Bar Association’s ethics committee declared
that collaborative law, a process by which lawyers agree to withdraw if
settlement talks collapse, is per se unethical. Although nonbinding,
the 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.
The idea behind collaborative law, its proponents say, is to encourage
settlement by easing the exchange of information between parties. The
process would bar the use of that information and require the lawyers
to withdraw should the dispute go to court.
The lawyers and the parties agree to these and other terms at the
outset of the process in a contract termed a “four-way agreement.” Part
of the rationale for the agreement is to encourage the parties to
settle by imposing the threat of having to find new lawyers if they go
to court.
However, the ethics committee said the four-way agreement creates an
insurmountable conflict of interest among lawyers and clients. The
agreement violates state Professional Rule of Conduct 1.7(b), which
bars a lawyer from representing a client if the representation is
“materially limited by the lawyer’s responsibilities to ... a third
person.” Ethics Opinion 115, Ethical Considerations in the
Collaborative and Cooperative Law Contexts (Feb. 24).
Nor is the agreement permissible if the client consents, the opinion
says, because the conflict impairs the lawyer’s independent judgment
about the need for litigation.
Meanwhile, the opinion does endorse a little-used offshoot of
collaborative law, known as cooperative law, that dispenses with the
four-way agreement.
Nevertheless, the opinion worries Colorado lawyers who use
collaborative law—especially family lawyers—as well as proponents of
the practice nationwide.
“It’s a nightmare,” says Denver family law practitioner Kathleen Hogan.
“The opinion states very strongly in very definite terms that the
problem is with attorneys signing the four-way agreement.”
Adds Hogan: “Unfortunately, the opinion also spends a lot of time on
cooperative law, which is not something that anyone in Colorado does
and any one of us knows what it is supposed to be.”
The opinion arose after a Colorado lawyer and collaborative law
practitioner informally asked the bar’s ethics committee to review the
process. The committee decided to issue the opinion because of the
rapid growth of collaborative law in the state, says Alexander
Rothrock, a Denver-area lawyer who is a member of the committee.
LIMITED INROADS
Although collaborative law has expanded rapidly in the field of family
law, it has been slow to gain traction outside that area of practice.
Critics have long charged that the four-way agreement places too much
power in one party’s hands. If one party quits, the entire process
fails.
Ohio State University law professor Christopher Fairman, who studies
ADR ethics, has long been concerned about how the collaborative model
fits into the current ethical constructs of the ABA Model Rules of
Professional Conduct.
The Colorado opinion goes to the very heart of the problem, he says.
“The opinion explicitly states that the collaborative agreement makes
the lawyer beholden to a third party, and that limits the lawyer’s
ability to represent his client—so they can’t do it.”
Five other jurisdictions, including New Jersey, Pennsylvania and
Kentucky, have weighed in on collaborative law, and while all have
raised concerns about the four-way agreement, none has found it
unethical, Fairman notes.
FOOTNOTE IN QUESTION
But the Colorado ethics opinion does not necessarily spell the death
knell for collaborative law in the state. A footnote suggests that
lawyers can lift the ethical cloud by limiting the agreement to the
parties, says Rothrock, who stressed that he was speaking for himself
rather than the committee.
“Footnote 11 is important,” he says. “It’s the fix. If you do it as a
two-way agreement and not a four-way agreement so that it removes the
attorney’s responsibility to the other counsel and the other party,
[that] removes the conflict.”
In suggesting this quick fix, however, collaborative law practitioners
complain that it guts the collaborative process and morphs into
cooperative law, which does not require lawyers to withdraw from the
process should settlement talks fail, Fairman says.
Hogan, for her part, thinks the footnote, if anything, creates even
more of a dilemma. Collaborative law has developed a considerable
following, including international organizations with resources to
train lawyers and answer their questions, among them the International
Academy of Collaborative Professionals. By contrast, cooperative
law is practically nonexistent.
Hogan notes that there are few documented uses of the cooperative
model, and most practitioners would be unsure how to proceed without
the four-way agreement.
“The opinion will give Colorado a black eye on the national scene
because at the same time our ethics opinion says it is per se
unethical, other states have gone the other way,” Hogan says.
Proponents of collaborative law also fear the ethics opinion will harm
efforts to formalize its use. The National Conference of
Commissioners on Uniform State Laws has formed a drafting committee
for collaborative law, which is charged with coming up with model
statutory language.
“The concern is how to write a statute to allow for collaborative law
to say that this is an ethical, legal practice,” Fairman says.
©2007 ABA Journal