More info on Colorado Opinion - 4-way contracts?
March 06, 2007
Copies of the Colorado opinion have been circulating although I don't know of it being posted on the web yet.
One major concern in the opinion is the four-way contract that clients in most parts of the U.S. use to commit to the collaborative process -- does it create rights and duties directly between a client and her spouse's lawyer?
If that is the major stumbling block, then perhaps the Opinion's disapproval of collaborative law is not so absolute. In my cases I always try to have the collaboration agreement be signed only by the clients, with the lawyers signing a separate stipulation that is only about their disqualification from representing the clients in contested litigation. There are some of us in Virginia who follow this model -- I don't know if we're a majority within Virginia.
Although I don't think there's any substance to the concerns about the 4-way agreements, it seemed easier to steer clear of any implication, however far-fetched, that there were lawyer-client duties or liabilities between a lawyer and the other lawyer's client; or that there were any duties to the other party that were not consistent with the attorney-client relationship as defined in the collaborative retainer agreement nor with the lawyers' duties to other parties under the ethics rules.
More importantly, we do it this way because is is the clients' agreement, and the clients' decision, to collaborate. The lawyers' and clients' individual collaborative lawyer retainer agreements keep the lawyers from ever being involved in contested litigation between the parties, and the clients' agreement with each other guarantees that they are each hiring their own lawyer with that limitation.
One form of the attorney stipulation is at the end of the client-client contract. It just says,
"THE ATTORNEYS, WHO ARE NOT PARTIES TO THE CONTRACT ABOVE, HEREBY WITNESS IT, AND ACKNOWLEDGE THAT THEY ARE EACH IRREVOCABLY DISQUALIFIED FROM PARTICIPATING IN CONTESTED LITIGATION BETWEEN THESE PARTIES."
[signature lines and dates]
Another is not attached to the parties' contract at all, and is titled "COLLABORATIVE LAW STIPULATION".