The Family Law News Blog

Recent media about collaborative divorce and the ABA ethics opinion

Boston collaborative lawyer David Hoffman has an op-ed in today's Christian Science Monitor about collaborative law and the new ABA Ethics Opinion approving of it.

Ontario social worker Gary Direnfeld has posted a short television interview about collaborative divorce.

ABA Ethics Opinion Endorses Collaborative Divorce

The American Bar Association has issued an Ethics Opinion endorsing Collaborative Practice (a.k.a. Collaborative Law, Collaborative Dispute Resolution, or Collaborative Divorce), and responding to the concerns raised by the Colorado bar association opinion that got so much attention in the media and on this blog.

The opinion is available via the ABA web site, but right now it can be viewed and downloaded only by ABA members. At some point in the near future nonmembers will also be able to download it for a small fee.

GAG ORDERS IN DIVORCE SETTLEMENTS MAY VIOLATE ETHICS RULES

The ABA Litigation Section recently raised this question. Provisions in an agreement settling a divorce case could be unenforceable if they prohibit disclosure of already-public information about the case, and may thus may be unenforceable, according to District of Columbia Formal Opinion 335. The ABA’s Litigation News reported this holding of the D.C. Bar Legal Ethics Committee based on D.C. Rule of Professional Conduct 5.6(b), and reviewed other bars’ holdings on this point. The article, in the March issue of Litigation News, points out that New York State and Los Angeles Bar Associations have issued substantially similar opinions. The agreement in question prohibited disclosing not just the terms of the settlement, but the fact that the case had been settled, the defendant’s identity, and the allegations in the Complaint. That Complaint had been publicly filed and had never been sealed. The problem is that imposing an impermissible restraint on a lawyer’s right to practice can violate a client’s right to make a reasoned choice of counsel based on information about the lawyer’s experience in such cases. According to the D.C. Bar’s view, the fact that a lawyer has represented a certain client is not a client confidence or secret in a divorce case, and lawyers can and should share that information. The New York State Bar Association’s Formal Opinion 730 and the Los Angeles County Bar Association’s Formal Opinion No. 512 echoed the D.C. Bar’s reasoning, but a federal court’s ruling in Sealed Party v. Sealed Party (S.D. Tx. May 4, 2006) held that a lawyer’s obligation to keep client confidences may even extend to information that is publicly available, but not generally known.

Critique of Colorado Ethics Opinion on Collaborative Law

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.