I've now read through the Ethics Opinion, responding as I went. You can click on the link below for the full critique including quotes of key passages and my responses to them.
Basically, it approves of Collaborative Law so long as people who are having lawyers sign the Participation Agreements stop doing that, and change over to agreements signed only by the parties. In doing so, however, it makes many disturbing arguments that are dismissive of clients' autonomy, their key roles in their own cases, and their freedom of contract. And it very inaccurately portrays some aspects of what actually happens in collaborative cases.
Half of the Opinion is about another practice called "Cooperative Law," but that part actually has a lot of helpful advice about many of the distinctive things we do in Collaborative practice.
Critique of Colorado Ethics Opinion 115 on Collaborative Law
The Opinion holds that the collaborative agreement -- if it is signed by the lawyers as well as the clients -- gives a lawyer duties to the other client that interfere with duty of loyalty to the lawyer’s client. It cites a state rule based on the ABA’s nationwide model rules:
“Rule 1.7(b) of the Colorado Rules of Professional Conduct, Conflict of Interest: General
Rule, provides in relevant part:
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…
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation.
“The comment to Rule 1.7 explains: “Loyalty to a client is also impaired when a lawyer
cannot consider, recommend or carry out an appropriate course of action for the client
because of the lawyer's other responsibilities or interests. The conflict in effect
forecloses alternatives that would otherwise be available to the client.”
The flaw in the Committee’s reasoning is that the lawyer signs the Participation Agreement only in his role as his own client’s lawyer -- not as an individual who has any reason of his own to enter a contract with the other client.
Whether the lawyer signs the agreement or not, he is bound, as his client’s agent, by the promises the client makes in it regarding the lawyer’s behavior and rules of engagement. But those are the CLIENT’S commitments to the other client.
“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.”
What the opinion ignores is that the client is also agreeing to those things, so there is no conflict between the lawyer’s duties and the client’s.
The opinion then goes into a discussion of whether a client can choose to waive the conflict of interest, and the lawyer’s duty to inform the client about the conflict and determine whether the conflict will impair the representation. I believe that whole line of discussion is off base because there is no conflict of interest, as I argued above. But more importantly, that whole side of the issue should be moot, because a lawyer who believes he is signing on to a conflict of interest, or that he is a lawyer for both parties or something, should not be attempting to practice collaborative law.
“The comment to Rule 1.7 further clarifies:
A possible conflict does not itself preclude the representation. The critical
questions are the likelihood that a conflict will eventuate 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.”
[Note -- the comment does not say that this particular lawyer should be the one to pursue those courses of action. There are many other reasons a lawyer might not be able to accompany the client where he needs to go - the client might need a lawyer in another specialty, or another state, might need to sue a former client of the lawyer, or the case might have become too big for the lawyer’s practice.]
Collaborative law does not keep the client from later choosing litigation, and does not keep the lawyer from advising the client about all alternatives and courses of action, including litigation.
“The Committee concludes that a client may not consent to this conflict for several
reasons. First, in the Collaborative Law context, the possibility that a conflict will
materialize is significant. 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).”
That ignores the fact that there are already ethics rules in place that require a lawyer who is withdrawing to take steps to protect the client’s interests, withdrawing in a fair and orderly manner. (Rule 1.16).
It assumes that collaborative lawyers who end their representation would do so in a uniquely un-collaborative manner, cutting the client off without giving advice about the doubtless difficult choices the client is facing.
The Participation Agreement does not require or suggest anything like that.
“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
So? The Rule and Comment don’t say anything about a course of action being foreclosed “to the lawyer.” If it was something that was part of the lawyer’s job during the course of the case, that could be a problem. But we are talking about something that is distinct from the job the lawyer was hired to do, and something that is already excluded from the lawyer’s job under the limited retainer contract between the client and the lawyer under Rule 1.2, which lets the client choose to limit the scope of the lawyer’s representation.
The committee then counters the argument that the client is able to get a new lawyer, by saying,
“Moreover, a potential conflict under Rule 1.7 is not ethically reconciled simply because
another lawyer can represent the client if the conflict materializes. … the
ability of another lawyer to alleviate the materialized conflict is irrelevant.”
Well, that would be a good argument IF collaborative lawyers were arguing that it’s a conflict but it’s OK because you can get another lawyer. But that is not what we’re saying. We’re saying that it’s not a conflict in the first place, for the reasons given above.
Finally, the committee adds another argument against collaborative law:
“It is also noteworthy that disqualification from future litigation is not contingent upon any
good faith erosion of the collaborative process. If the process does not result in an
agreement between the parties, regardless of the good or bad faith participation of any
party to the process, the Four Way Agreement requires the Collaborative Law
practitioner to withdraw. The process is particularly susceptible to abuse in this respect.”
I have no idea what they are getting at in that piece, and they don’t give any examples of what sort of situation, or abuses, they are thinking of.
If they are suggesting that the core collaborative commitment — the disqualification of both lawyers from involvement in litigation between the parties — should only apply when someone acts in bad faith — then the parties to a collaborative contract would have no idea whether its most important provision applies in their case or not. They would not be able to know that without fighting over a subjective, often poorly-documented inquiry into whether someone acted in “bad faith.”
That’s all there is about collaborative law. The rest of the opinion is about something called Cooperative Law,. Curiously, in that section they discuss the provisions of Rules 1.2 and 1.16 I discuss above. In fact, many of the practices that they discuss as part of Cooperative Law are also part of Collaborative Law — including the commitment to full disclosure of relevant evidence, which is the second most important, distinctive and controversial element of Collaborative Law. They give their blessing to some of them, and give wise guidance about how to do them in an ethical manner.
Thinking back over the opinion, I notice that they always describe the end of the representation as “withdrawal”, which sounds like an affirmative act that the lawyer does, presumably against the client’s wishes. But that is not how it happens, except in exceptional cases that most collaborative lawyers never see. Most of the time, the representation simply ends because the task the lawyer was hired for ends -- the collaborative process ends either in a successful agreement usually capped with an uncontested divorce process, or, rarely, in a failure to reach agreement.
Basically, the Committee says the limited scope of the representation creates a conflict of interest between what the client may need and what the lawyer is bound to do. They ignore the fact that the Rules already explicitly allow the client to hire the lawyer for a limited purpose (Rule 1.2). I don’t think it makes sense to use one rule to entirely negate another provision of the ethics rules. And even if there are still states where Rule 1.2 doesn’t have that provision, the limited scope of representation is already a fact of life for all but the hugest law firms -- we all have some things we don’t do, and places we don’t go, even if a client needs them.
The opinion specifically condemns four-way collaborative participation agreements, and directs all of its criticisms at the lawyer’s promises TO THE OTHER CLIENT. It looks like collaborative law will not be affected so long as the parties use a two-way agreement between the two parties, instead. That is how I have been doing it for a couple years now.
The Opinion explicitly approves this:
“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 legal 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 creating 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.”
Nonetheless, its arguments are disturbing because they ignore some basic facts of law practice and fundamental principles of client autonomy, and freedom of contract and sanctity of contract (which are two sides of the same coin).
It also is going to seriously affect Colorado cases that have already begun with four-way contracts. Everyone involved in such cases will need to sign contracts formally abrogating the four-way contracts, and replace them with two -way contracts.
And if a state did ban collaborative law even under two-party contracts, I reiterate what I said when I first heard about it -- that would be unconstitutional. Well, almost. I’m no constitutional lawyer, so I don’t know precisely how far freedom of contract (Art. I Sec. 10 Clause 1) and the right to counsel (6th Amdt.) are actually protected by constitutional law. But I know that many of the principles in the 6th Amendment seem to be honored in civil cases as well as criminal ones, and the freedom and sanctity of contracts, and the right to hire a lawyer as you see fit, are essential to the functioning of our legal system, and our way of life and, indeed, that of any civilized society.