Thursday, March 15, 2007

Collaborative law unethical, says Colorado Bar Association

Collaborative law unethical?Collaborative law, a process in which lawyers and their clients contractually agree to pursue non-adversarial means of resolving disputes and reaching agreement without going to court, has become an increasingly popular way to address divorce, family, and other matters. It is designed to utilize and foster mutual respect, joint problem solving, open communication, and interest-based negotiation. If the process fails and the client wishes to proceed to court, the lawyer must withdraw and the client must choose another lawyer.

So, what's not to like about a no-court alternative to litigation? Plenty, according to the Colorado Bar Association's Ethics Committee, which has issued an advisory opinion declaring collaborative law to be unethical per se--an opinion that has stirred swift reaction from ADR bloggers and others. Covering the story so far are Gini Nelson, John Crouch, Stephanie West Allen, Pauline Tesler, Alan Childress, Robert Ambrogi, and David Giacalone.

According to the Committee:

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. The Committee further concludes that pursuant to Colo.RPC 1.7(c) the client’s consent to waive this conflict cannot be validly obtained.
Pauline Tesler, an expert in collaborative law, says there is little to fear from this opinion: "It is non-binding, even in Colorado, and prevents no lawyer or client even in Colorado from electing collaborative legal representation. The opinion stands alone in its obvious hostility to collaborative legal practice--and in its faulty reasoning. All other ethics opinions to date have supported the informed choice of collaborative law."

Nonetheless, this opinion should still trouble us, since it comes from a prominent voice in the legal community. And this is not the first time such arguments have been made. We should moreover consider the effect an opinion like this can have in discouraging creativity and innovation in the practice of law.

The authors of this opinion seem to have forgotten that the Rules of Professional Conduct actually encourage lawyers to be driving forces for positive change in the profession. Consider these words from the preamble to the Rules of Professional Conduct (Colorado's, but also those from the ABA's own Model Rules):

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.
along with these (again, Colorado's, although not in the current version of the ABA Model Rules):

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government.
Which seems to me what collaborative law is all about: the dignity of the individual. We need more of that in the law, not less--despite what the Colorado Bar Association's Ethics Committee may think.