Colorado Bar Assn: collaborative law is unethical

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     “Collaborative law” has been gaining in popularity over the past decade, as an option for clients who want lawyer assistance in negotiating a resolution to a legal conflict (often a divorce or other family law matter), while keeping control of the situation to the extent possible and making the process as civilized as possible.  At the request of their clients, the opposing lawyers agree never to take the particular case to court — thus motivating the lawyers to work at creating a settlement of the dispute.  The clients do not give up their rights to litigate later, should the negotiations fail.  As lawyer Gini Nelson explained at her Engaging Conflicts weblog, just one week ago (March 6, 2007):

handshakeS “Collaborative Law is a form of lawyering that is, to some degree, a hybrid of an unbundled practice approach that uses a mediative negotiation style. It seeks to integrate non-adversarial and cooperative strategies, and relies heavily on the empowerment of the clients as informed decision-makers.

The Colorado Bar Association’s ethics committee recently took a big step backwards towards infantilizing clients and militarizing all lawyers, when it declared that collaborative law is always unethical for the lawyers involved, because the attorneys have agreed with eachother that they will not litigate the matter.  Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts (Feb. 24, 2007). 

Prof. Alan Childress contrasts and compares collaborative law with unbundling: “The goal is to stay out of court.  In this sense it is very different from typical “limited representations,” which are often used to facilitate court matters by prepping witnesses and ghost writing briefs.  But it certainly limits upfront the goals and scope of this particular lawyer-client representation.” He explains the Colorado Opinion:

“The problem is perceived as one where the lawyer has agreed in advance to look out for the other client’s interest and is not in a position to urge litigation where that is what may be best for his or her own client.  The opinion’s focus is on the pre-agreement that the lawyers sign and the ways they are limiting themselves in advance, said to be violating the Rule 1.7 duty not to allow third party interests (the other client’s) to materially limit what they would be doing with their own client (like filing a motion in court). “

At The Family Law News Blog, John Crouch has this apt reaction: 

“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.”

graphClimbS There has been a lot of discussion in lawyer weblogs on this Colorado ethics opinion.  As usual, Robert Ambrogi has done a good job summarizing the opinion and gathering links to weblogs participating in the (one-sided) debate.  See ‘Collaborative Law Per Se Unethical’, Legal Blog Watch, March 12, 2007.

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