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'Collaborative Law Per Se Unethical'

This is the opinion of the Colorado Bar Association's ethics committee, and it is understandably generating controversy among legal bloggers. The opinion, Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts, concludes:

"[T]he 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. The Committee further concludes that pursuant to Colo.RPC 1.7(c) the client’s consent to waive this conflict cannot be validly obtained. Because Cooperative Law lacks the disqualification agreement found in Collaborative Law, the practice of Cooperative Law is not per se unethical. However, those participating in Cooperative Law face unique ethical issues and must be mindful of myriad potential ethical pitfalls."

With the collaborative approach growing increasingly common, particularly in family law matters, the opinion is sure to have repercussions well beyond Colorado. The collaborative law approach calls for the parties and their lawyers to agree to negotiation without litigation. If the process breaks down and litigation is required, the lawyers must withdraw from the case and new lawyers brought in. Agreeing to this process, says the Colorado Bar, requires the lawyer "to impair his or her ability to represent the client."

At Engaging Conflicts, Gini Nelson says the opinion may serve to promote cooperative law over collaborative law, given that the former lacks the required lawyer-disqualification agreement. But John Crouch at The Family Law News Blog sees the opinion as contrary to clients' rights:

"In my opinion ... this ruling violates clients' right to hire the counsel of their choosing, and their freedom of contract. It treats clients like children. In the long run, it cannot stand. Divorce is a dismal business for most divorce clients, and collaborative law is the single biggest thing that has come along to offer serious hope of making divorce less harmful."

In a later post, Crouch suggests that a way around this ethical stumbling block may be for only the clients to sign the collaboration agreement. At Legal Profession Blog, S. Alan Childress says he is not so sure that would satisfy the Colorado ethics committee. "Still," he writes, "it remains to be seen whether other states will view these agreements the same way, or whether the suggested solution of client-only agreements maintains the positives, structure, and binding power of collaborative law while passing ethical muster in various states."

The opinion is dated Feb. 24, 2006, but commentators agree it was issued on Feb. 24, 2007. This appears to be correct, given that the opinion that preceded it in number was issued in October 2006.

Posted by Robert J. Ambrogi on March 12, 2007 at 05:56 PM | Permalink | Comments (2)

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