COLLABORATIVE LAW: A CRITICAL REFLECTION ON
WHETHER A COLLABORATIVE ORIENTATION CAN BE
ETHICALLY INCORPORATED INTO THE PRACTICE OF LAW
Larry R. Spain'
TABLE OF CONTENTS
1.
INTRODUCTION
CRITICISM OF THE ADVERSARIAL MODEL OF PRACTICE
THE INCREASED USE OF ALTERNATIVE DISPUTE RESOLUTION
COLLABORATIVE LAW DISTINGUISHED
GROWTH OF COLLABORATIVE LAW
ETHICAL ISSUES IN COLLABORATIVE PRACTICE
ETHICAL DILEMMAS RAISED BY COLLABORATIVE LAW
A. Scope ofRepresentation
B. Informed Consent
C. Withdrawal ofCounsel
D. Limitations on Zealous Representation
E. Confidentiality
F. Competence ofCounsd
G.. Conflict ofInterest
VIIJ. CONCLUSION
II.
III.
IV.
V.
VI.
VII.
I.
141
144
146
148
151
151
158
158
160
1(52
165
168
170
171
172
INTRODUCTION
One area of legal practice that has been subject to considerable criticism
and, at the same time, continuing innovations in practice is family law.' In
recent years a new orientation to the practice of law has been introduced
referred to as collaborative law, with its most frequent application in the
area of family law as a new model of dispute resolution, collaborative
·Associate Professor of Law, Texas Tech University School of Law.
lSee Janet R. Johnston, Building Multidisciplinary Professional Partnerships with the .Court
all Behalf of High-Conflict Divorcing Families and Their Children: Who Needs What Kind of
Help?, 22 U. ARK. LITTLE ROCK L. REv. 453, 453-54 (2000).
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2
divorce Lawyers, disenchanted with the conventional adversarial model
of practice, are increasingly embracing an alternative approach using
cooperative negotiation and problem-solving that values collaboration,
compromise, and direct communication among disputing parties combined
with an explicit commitment to settlement from the outset.'
What is meant by the term collaborative divorce? Commentators have
offered a variety of definitions4 and have advocated different collaborative
divorce models. 5
2 The concept of collaborative law as a model of practice originated in 1990, created by a
family law practitioner in Minneapolis, Minnesota and thereafter spread throughout the country.
PAULINE H. TESLER, COLLABORATlVE LAW: ACHlEVING EFFECTIVE RESOLUTION IN DIVORCE
WITHOUT LITIGATION xix n.1 (2001).
3 See id. at 4.
4 See id at 7 (defining as a process in which the parties to a divorce and their lawyers enter
into a binding contract setting forth the extent and singular purpose of the representation
undertaken: To assist the parties through a facilitative problem-solving process to reach a
negotiated settlement satisfying their individual interests); Marsha Baucom, Collaborative
Divorce, ORANGE COUNTY LAW., July 1999, at 18, 28, available at WL 41-JUL OCLAW 18
(defining as the use of an integrated team of legal, mental health and financial experts to assist
parties in finding solutions to issues of divorce through problem-solving skills); James K. L.
Lawrence, Collaborative Lawyering: A New Development in Conflict Resolution, 17 OHIO ST. J.
ON DISP. REsoL. 431, 432 (2002) (defining as '''representation for settlement purposes only"');
Stu Webb, Collaborative Divorce: A New Model that Takes a Team Approach to Marital
Dissolution, MATRIM. STRATEGIST, Jan. 2002, at 6,6, available at WL 19 No. 12 MATRIMST 6
(defining as the use of an interdisciplinary team of experts in combination with collaborative
lawyers representing each party in a four-way meeting committed from the outset to settlement).
Texas, the only state to give legislative recognition to collaborative law processes, defines
collaborative law as:
[A] procedure in which the parties and their counsel agree in writing to use
their best efforts and make a good faith attempt to resolve their dissolution of
marriage dispute on an agreed basis without resorting to judicial intelVention
except to have the court approve the settlement agreement, make the legal
pronouncements, and sign the orders required by law to effectuate the
agreement of the parties as the court determines appropriate. The parties'
counsel may not serve as litigation counsel except to ask the court to approve
the settlement agreement.
TEx. FAM. CODE ANN. § 6.603(b) (Vernon Supp. 2004); see also TEx. FAM. CODE ANN.
§ 153.0072 (Vernon 2002).
sSee, e.g., Curtis J. Romanowski, Progressive Divorce: A 4-Phase, Outcome-Driven
Approach to Nonlitigated Dispute Resolution, MATRlM. STRATEGIST, July 2002, at 4, 4, available
at WL 20 No.6 MATRlMST 4.
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COLLABORATIVE LAW
143
A collaborative law model of practice is generally premised on what
proponents argue is a fundamental paradigm shift in the lawyer's role: An
overriding commitment to settlement of a dispute outside the traditional
litigation model combined with individualized legal advocacy within a
COllaborative environment6 Others have suggested that the following
essential elements are required in defining a COllaborative law process:
Lawyers contractnally limit the scope of their representation to achieving
resolution and disqualifying themselves from litigation absent agreement;
parties agree to complete and timely disclosure of all relevant information;
clients actively participate and control the process; each party is represented
by separate counsel; experts are jointly retained; and commitment is made
to act in good faith. 7
Thus, collaborative lawyering results from a distinct paradigm shift
from adversarial thinking to collaborative thinking by addressing the
relationships and interests of the respective parties. 8 Despite the variety of
defmitions of COllaborative law, it has been suggested that t11ere is a
universal and necessary element for the model of practice referred to as
collaborative law: A written commitment from each party's counsel
disqualifying them from representing their client against the other in court 9
The lack of complete consensus on the precise parameters of
COllaborative law is not unlike the variety of descriptions offered by t1lOse
practicing or participating in another form of alternative dispute resolution,
mediation.!O It has been suggested that mediation, in general, is an
inherently collaborative processl l However, a diverse range of mediation
styles and orientations have developed over tinie,rz including problemsolving mediation,r' facilitative mediation,14 evaluative mediation,15
6SeeTESLER, supra note 2, at 4.
7Douglas C. Reynolds & Doris F. Tennant, Collaborative Law-An Emerging Practice,
BOSTONE. 1., Nov.-Dec. 2001, at12, 12.
8 See id at 27.
9 TESLER, supra note 2, at 6.
10See Leonard L. Riskin. Understanding Mediators' Orientations, Strategies, and
Techniques: A Grid/or the Perplexed, I I-lARV. NEGOT. L. REv. 7, 8-9 (1996).
llRobert M. Ackerman, Disputing Together: Conflict Resolution and the Search for
Community, 18 OIDO ST. J. ON DIsP. RESOL. 27, 7l (2002).
12Ro bert P. Bums, Some Ethical Issues Sun-ounding Mediation, 70 FORDHAM L. REv. 691,
701 (2001).
13Gary Paquin & Linda Harvey, Therapeutic Jurisprudence, Transformative Mediation and
Narrative Mediation: A Natural Connecti0l(, 3 FLA. COASTAL L. 1. 167, 180 (2002), available at
WL 3 FLCLJ 167.
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transfonnative mediation/6 and therapeutic mediation." Particularly with
family disputes, a wide variety of styles and models of practice have
emerged that fall nnder the umbrella of mediation.!S
II.
CRITICISM OF THE ADVERSARIAL MODEL OF PRACTICE
Many commentators as well as a variety of advocates have expressed
dissatisfaction with and shared their .concerns that the adversary system is
not appropriate and even connter-productive for many legal disputes and
may be inadequate for serving important objectives. of any dispute
resolution system.!9 Particularly, a number of commentators have criticized
the use of the adversarial model for resolving family law conflict because it
encourages increased animosity between the parties, exacerbates the
nnderlying conflict, and often results in a polarization of their respective
positions.'o The adversarial model of practice works on the premise that an
attorney has an ethical obligation to highlight the differences between the
litigants and advocate their client's position zealously by attacking their
adversary in such a manner that promotes increased polarization. 2 !
14 See
Samuel J. Imperati, Media(or Practice Models: The Intersection ofEthics and Stylistic
Practices in Mediation, 33 WILLAMEITE L. REV. 703, 709-10 (1997).
15See Riskin, supra note 10, at 24; Jam~sH. Stark, The Ethics 0/ Mediation Evaluation:
Some Troublesome Questiqns and Tentative Proposals, from an Evaluative Lawyer Mediator, 38
S. TEx. L. REv. 769,770-71 (1997).
16See generally ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF
MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNTIION (1994).
17Beth M. Erickson, Therapeutic Mediation: A Saner Way of Disputing, 14 J. AM. ACAD.
MATRIM. LAW. 233, 240-42 (1997), available at WL 14 JAMAML 233.
18Edward Kruk, Practice Issues, Strategies, and Models: The Current State of the Art of
Family Mediation, 36 FAM. & CONCILIATION CTS. REv. 195, 195 (1998), avaIlable at WL 36
FAMCCR 195.
19See Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern,
Multicultural World, 38 WM. & MARy L. REV. 5, 5--{j (1996).
2°Alexandria Zylstra, The 1?oad From VoluntaJy Mediation to Mandatory Good Faith
Requirements: A Road Best Left Untraveled, 17 J. AM. ACAD. MATRIM. LAW. 69, 69 (2001),
available at WL 17 JAMAML 69; see also Johnston, 'Supra note 1, at 456; Joan B. Kelly, Issues
Facing the Family Mediation Field, 1 PEPP. DISP. REsoL. LJ. 37, 37 (2000); Deborah Weimer,
Ethical Judgment and InterdisciplinaJy Collaboration in Custody and Child Welfare Cases, 68
TENN. L. REv. 881, 881-82 (2001).
21Carol J. King, Burdening Access to Justice: The Cost ofDivorce Mediation on the Cheap,
73 ST. JOHN'S L. REv. 375, 377 (1999).
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COLLABORATIVE LAW
145
Many lawyers see traditional divorce litigation as the most destructive
method for resolving marital disputes for the parties involved. 22 An
adversarial orientation as part of the conventional culture of litigation often
results in significant adverse psychological effects for the parties and their
children in divorce. 23 While the traditional concept of an attorney's
professional obligation to their client is fairly straightforward, carrying out
those duties in practice when children are involved becomes extremely
difficult because of a client's competing need for aggressive representation
of their interests while, at the same time, nurturing some fonn of family
relationship that will be required after the divorce is final. 24 As a result,
parties involved in divorce express significant dissatisfaction with the
adversary system and the lawyer's role in such a system."
Client dissatisfaction and escalating costs associated with the
adversarial process have resulted in an increasing number of individuals
who attempt to handle their divorce26 and other matters27 without the
assistance of connsel. Therefore, it is natural for clients to be attracted to an
alternative model of practice that values collaboration and holds some
promise of reducing costs.
22Patricia Gearity, ADR and Collaborative Lawyering in Family Law, MD. B.J., May-June
2002, at 2, 3.
23SeeMarsha Kline Pruett & Tamara D. Jackson, The Lawyer's Role During the Divorce
Process: Perceptions ofParents, Their Young Children, and 111eir Attorneys, 33 FAM. L.Q. 283,
285-86 (1999).
24 Id at 286-87.
25 1n a research project involving families with at least one child six years or younger going
through divorce in Connecticut over a two year period as part of a larger study entitled "The
Culture of Litigation: Impact on Divorcing Parents and Children," an overwhelming majority of
responses indicated a negative response to the court system and the attorney's role in the legal
system. Parents expressed dissatisfaction with the failure to obtain final and complete resolution
of the dispute, the lack of involved participation in the decision-making process and exacerbation
of conflict between the parties. ld. at 289, 295.
26 See, e.g., Sharon Lennan, Litigants Without Lawyers: Flood Courts, CAL. RI., July 2001,
at 1, 32 (discussing that a 1997 report indicated that more than half of all parties in family law
matters appeared in court without an attorney); BRUCE D. SALES ET AL., SELF-REpRESENTATION
IN DIVORCE CASES, EXECUTIVE SUMMARY, REpORT OF ABA STANDING COMMITTEE ON
DELIVERY OF LEGAL SERVICES 5 (1993) (discussing that a study of Maricopa County (phoenix)
Arizona found in 1990 thai more the 90% of the divorce cases involved at least one litigant who
self-represented while in 52% of the cases both parties self-represented).
27 Raymond P. Micklewright, Discrete Task Representation alkla Unbundled Legal ServiCes,
COLO. LAW., Jan. 2000, at 5,5 (2000).
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III. THE INCREASED USE OF ALTERNATIVE DISPUTE RESOLUTION
It is often tlle case that clients have particular needs and interests that
cannot be satisfied through traditional litigation or by a competitive and
adversarial orientation?8 The use of mediation was introduced to family
law practice as an alternative means of resolving family conflict peacefully
and without the problems generally associated with a conventional litigation
mode1. 29 A variety of other innovations have also been introduced to family
law practice to minimize the hannfu1 effects of an adversary system. 30
Despite the proliferation of the use of mediation for resolving family
law disputes,3! many attorneys have a distrust of the mediation process 32 In
particular, the use of non-lawyers in mediation has resulted in concerns
about whether mediators are involved in the unauthorized practice of law,
diverting attention from the development of mediation as a distinct
profession. 33 For some attorneys, it presents an ethical dilemma to abandon
their adversarial training and allow their clients to participate in an infonnal
process less structured and with outcomes less certain. 34 On the other hand,
these concerns may suggest that lawyers representing parties who
participate in mediation have a heightened duty to advise and provide
28 Leonard
L. Riskin, The Contemplative Lawyer: On the Potential Contributions of
Mindfulness Meditation to Law Students, Lawyers, and Their Clients, 7 HARv. NEGOT. L. REV. 1,
13 (2002).
29 See generally Nancy S. Palmer & William D. Paimer, Family Mediation: Goodfor Clients,
Goodfor Lawyers, COMPLEAT LAW., Fall 1996, at 32.
30 See, e.g., Peter Salem, Education for Divorcing Parents: A New Direction for Family
Courts, 23 HOFSTRA L. REv. 837, 838 (1995) (discussing the benefits of parent education
programs for divorcing couples).
31 Kelly, supra note 20, at 37; Carrie-Anne Tondo et aI., Note, Mediation Trends, A Survey of
the States, 39 FAM. CT. REV. 431, 431 (2001), available at WL 39 FAMCR 431. Additionally,
the implementation of mandatory mediation programs has significantly contributed to the
increased use of mediation in resolving disputes. Jacqueline M. Nolan-Haley, Lawyers, NonLawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving
Perspective, 7 HARv. NEGOT. L. REv. 235, 242 (2002).
32 Andrea Kupfer Schneider, The Intersection of Therapeutic Jurisprudence, Preventive LCl'rV,
and Alternative Dispute Resolution, 5 PSYCHOL. PUB. POL'Y & L. 1084, 1100 (1999), available at
WL 5 PSSYPPL 1084.
33 Nolan-Haley, supra note 31, at 238-39.
34 See Connie J.A. Beck & Bruce D. Sales, A Critical Reappraisal of Divorce Mediation
Research and Policy, 6 PSYCHOL. PUB. POL'y & L. 989, 1009-10 (2000), available at WL 6
PSYPPL 989.
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COLLABORATIVE LAW
147
infonnation to their clients as a means of guiding and infonning their
deliberations in mediation.
As attorneys began to contemplate training to become mediators, the
change in role from lawyer to mediator often proved difficult as a result of
the background, training, and experience of attorneys which required an
entirely different set of skills and orientation. This resulted in a cloudy line
of division between family mediation and family law practice. 35 As a result
of their professional training and background in a representative capacity, a
principal ethical dilemma for the lawyer acting as mediator has been the
conflict between facilitating party se1f-detennination and controlling
outcomes by evaluative direction. 36 As an increasing number of mediation
practitioners assumed (tn evaluative orientation, criticism arose that
mediation had become more similar to the adversaria1 process it was
designed to replace than to a truly collaborative undertaking directed by the
parties. 37 Alternative dispute resolution38 (ADR) is a rapidly growing
fie1d. 39 Presently, some fonn of alternative 'dispute resolution process has
been integrated within most state court systems to the point that ADR has
become an institutionalized part of the civil litigation process.40 ADR refers
to various processes other than litigation to resolve disputes.'] The range of
35 See Kelly, supra note 20, at 39-40. An argument has been advanced that psychological
data on the personality traits of attorneys in general would suggest that it is difficult for lawyers as
a group to adopt a more collaborative, problem-solving orientation. Susan Daicoff, Asking
Leopards to Change Their Spots: Should Lawyers Change? A Critique ofSolutions to Problems
with Professionalism by Reference to Empirically-Derived Attorney Personality Attributes, 11
GEO. J. LEGAL ETIllcs, 547, 581 (1998).
36 Maureen E. Laflin, Preserving the Integrity ofMediation Through the Adoption ofEthical
Rulesfor Lawyer-Mediators, 14 NOTRE DAMEJ.L. EnneS & PUB. POL'Y 479, 481 (2000).
37 See Ackennan, supra note II, at 31-32.
38 Some have preferred to refer to ADR as appropriate dispute resolution to convey the idea of
choosing the process best suited for resolution of the particular conflict. Carrie Menkel-Meadow,
When Litigation is Not the Only Way: Consensus Building and Mediation as Public Interest
Lawyering, 10 WASH. U. J.L. &POL'Y 37, 43 (2002}
39 For a brief history of the ADR movement, see STEPHEN B. GOLDBERG ET AL., DISPlITE
RESOLUTION: NEGOflATtON, MEDIATION, AND OTHER PROCESSES 6-9 (3d ed. 1999); Jeffrey W.
Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli,
Failed Overture, or FledgUJ'lg Adulthaod!, 11 Omo Sr. J. ON Drsp. REsoL. 297, 309-28 (1996).
40See Bobbi McAdoo & Art Hinshaw, The Challenge ofInstitutionalizing Alternative Dispute
Resolution: Attorney Perspectives on the Effect ofRule 17 on Civil Litigation in MlSsouri, 67 MO.
L. REv. 473, 475 (2002).
41GOLDBERG ET AL., supra note 39; at 7; Schneider, supra note 32, at 1085. One practitioner
has listed more than 20 processes within the rubric of ,ADR. Tom Arnold, Professional
148
BAYLOR LA W REVIEW
[Vol. 56:1
dispute resolution options available has often been defined in tenns of
where a particular process falls on a continuum. This continuum is defined
by the amount of self-detennination and freedom of choice provided to
disputants with conventional litigation being at one extreme 42
This increased interest in and use of ADR has resulted from widespread
dissatisfaction with the delay, cost, and lack of flexibility in the traditional
adversary system. 43 As a result, the proliferation in the use of ADR poses
significant challenges to the exclusive province that the legal profession has
fonnerly enjoyed in the resolution oflegal disputes. 44
Mediation, one of the most commonly utilized ADR processes, offers
the opportunity for parties to engage in direct communication with one
another in a more comfortable and infonnal environment and allows their
voices to be heard. 45 Commentators have suggested that the primary
philosophical orientation on which mediation is premised is the notion of
collaborative problem-solving. 46 Commentators have also argued that the
movement away from a facilitative model of mediation to an evaluative
orientation can be attributed to the significant influx of neutrals from the
legal profession who are unable to abandon their directive, problem-solving
orientation47
IV.
COLLABORATIVE LAW DrSTINGillSHED
The question becomes whether collaborative law in general and
collaborative divorce in particular are simply other problem-solving, nonadversarial responses to the widespread dissatisfaction with the traditional
Responsibility in ADR, in ALTERNATIVE DISPUTE RESOLUTION: How TO USE IT TO YOUR
ADVANTAGE!, 527, 530 (ALI-ABA Course of Study, Dec. 12, 1996), available at WL SB41 ALI-
ABA 527. Although ADR includes such processes as arbitration, mediation, early neutral
evaluation, SUDUnaIy jury trials and other hybrids as alternatives to traditional litigation, the use of
mediation, either consensual or court-mandated, has become the principal form of ADR in
domestic relations cases. Leonard L. Loeb, New Forms ofResolVing Disputes-ADR, 33 FAM. L.Q.
581,582 (1999).
42 Erickson, supra note 17, at 259.
43 NATHAN M.. CRYSTAL, PROFESSIONAL RESPONSffiILI1Y: PROBLEMS OF PRACTICE AND
THE PROFESSION 426 (2d ed. 2000).
44Nolan-Haley, supra note 31, at 239.
45 Schneider, supra note 32, at J098.
46 Kimberlee K. Kovach, New Ethics for the New Lawyer: Fitting the Standards to the
Process, DISP. REsOL. :MAG., Winter 1997, at 2,2.
47 See Laflin, supra note 36, at 495.
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COLLABORATIVE LA W
149
litigation model of advocacy.48 Of course, one of the beneficial results of
the increased acceptance and use of mediation is that attorneys increasingly
have integrated facilitative strategies within their traditional legal practice. 49
As family mediation gained acceptance among attorneys, some worried that
there would be increased efforts to regulate the practice of divorce
mediation. 50 As a result, it may be asked whether collaborative divorce is,
as some have asserted, a response by lawyers to regain control and authority
in the resolution of issues related. to marital dissolution. 51 In fact, some
have argued that the advent of collaborative lawyering represents a further
extension of parties using lawyers in mediation advocacy by simply
eliminating the need for a mediator.52
48 Stu Webb, the originator of the collaborative law movement, has described collaborative
law as more similar to mediation than traditiona11awyer negotiation but differing from mediation
in that both parties are represented by collaborative lawyers w40 facilitate the process without a
neutral third party. Stu Webb, Collaborative Law: An Alternative for Attorneys Suffering
"Family Law Burnout", MATRIM. STRATEGIST. July 2000, at 7, 7, available at WL 18 No.6
MATRIMST 7. ·Others have described collaborative law as another disput~ resolution alternative
without litigation, see Curtis J. Romanowsld, Collaborative Law-How It Works and Why
Progressive Divorce is Preferable, MATRIM. STRATEGIST, July 2002, at 4, 4, available at WL 20
No.6 MATR.Th1ST 4, and as a model of practice based upon principles underlying mediation of
which lawyers trained in mediation are already familiar, see Janice G. Inman, Collaborative
Family Law Practice and You, N.Y. FAM. L. MONTHLY, Mar. 2003, at 3, 3. Others have
suggested that collaborative law, with its requirement that lawyers withdraw if settlement is not
reached, distinguishes it from mediatiop- as both client and lawyer have an increased incentive to
reach a res~lution. See Lawrence, supra note 4, at 432.
49 Ro bert D. Benjamin, The Use ofMediative Strategies in Tradition~l Legal Practice, 14 J.
AM. ACAD. MATRIM. LAW. 203, 204 (1997), available at WL 14 JAMAML 203.
50See Kelly, supra note 20, at 38.
51 Penelope Eileen Bryan, "Collab()rative Divorce"; Meaningful Reform.or Another QUick
Fix?, 5 PSYCHOL, PUB. POL'y &L. 1001, 1003 n.5 (1999), available at WL 5 PSYPPL IDoL
52 Sheila M. Guttennan, Collaborative Family Law-Part II, COLO. LAW., Dec. 2001, at 57,
57; Lawrence, supra note 4, at 431-32. In fact, one commentator suggested that counsel for each
party in a collaborative law model ''become to some degree valuative-style co-mediators seeking
party-to-party communication and party agreement." Tom Arnold, Collaborative Dispute
Resolution-An Idea Whose Time Has Come?, in PATENT LITIGATION 2000, at 1089, 1093 CPU
Patents, Copyrights, Trademarks, and Literary Property Course, Handbook Series No. GO-OOBN,
2000), available at WL 619 PLIIPat 1089. Another proponent of a collaborative style of practice
referred to his method as the "meditative practice of law" suggesting that such an approach results
in the equivalent of a mediated settlement without the necessity or expense of retaining a separate
mediator. Edward 1. Selig, Mediation Principles: An Environmental Case History, DISP. RESOL.
J., Feb.-Apr. 2002, at 72, 73. On the other hand, others have written about the value that
mediation offers to other fOID1S of unassisted negotiations and the need for use of a mediator. See
generally Robert A. Baruch Bush. "What Do We Need a Mediator For?"; Mediation's "Value-
T
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Can a collaborative process be best served when the parties, although
personally engaged and actively participating, are nevertheless directly
represented by counsel? One conunentator has suggested that collaborative
law represents an approach that combines elements of the unbundling of
legal services53 movement with a mediative style of negotiation. 54
Collaborative law also represents a model of practice that goes beyond a
client simply engaging settlement counsel.55
Is there an added value to the disputants in utilizing a collaborative law
model? Proponents of such a model argue that it offers outcomes superior
to other ADR processes as a result of "the conunitment to settlement from
the very start of representation and the integral involvement of counsel from
the start of the negotiation process, rather than at the end of or ancillary to
the settlement process.,,56
Many of the attorneys embracing the
collaborative law practice model are additionally trained as mediators who
had become increasingly disillusioned when they assumed the role of
mediator and were unable to represent or advise parties to the dispute
because of a conflict of roles.57 It may be that the collaborative law
movement has been a natural response to the "liti-mediation" culture. 58
Added'for Negotiotors, 12 Dmo ST. J. ON DISP. REsoL. 1 (1996).
53 Unbundling of legal services has been defined as providing clients the option of selecting
only those discrete lawyering tasks they wish to engage a lawyer to undertake on their behalf
among the variety of activities that lawyers would normally provide in full-service representatio~
such as advice, legal research, fact gathering, discovery, negotiation, document drafting, and court
representation. FORREST S. MOS1EN, UNBUNDLmGLEGAL SERVICES: A GUIDE TO DELNERING
LEGAL SERVICES ALA CARTE 1, 1 (2000). In fact, some have characterized the collaborative law
model as "representation for settlement purposes only." Lawrence, supra note 4, at 432.
54 MOSTEN, supra note 53, at 113.
55 See generally William F. Coyne, Jr., The Case for Settlement Counsel, 14 OHIO ST. J. ON
Drsp. REsoL. 367 (1999) (arguing for the use of separate settlement counsel from trial counsel
whose sole focus would be on early settlement of the case).
56TESLER, supra note 2, at xx.
57See generally Judy K. Dougherty & Josefma M. Rend6n, Collaborative Law:
What it
Means to Texas Mediators, ALTERNATIVE RESOLS. NEWSLETTER (ADR Sec., St. Bar of Tex.)
Oct. 2001., available at http://www.texasadr.org/newslettersOl10.pdf#collaborative.
58 John Lande used the term "liti-mediation" culture to describe the legal environment in
which mediation becomes routinely incorporated into the litigation model of practice to the extent
that mediation is viewed as the accepted method for resolving litigation. John Lande, How Will
Lawyering and Mediation Practices Transform Each Other? 24 FLA. ST. U. L. REV. 839, 841
(1997).
COLLABORATIVE LAW
2004]
V.
151
GROWTH OF COLLABORATIVE LAW
Since the collaborative law movement began, various groups of
attorneys practicing collaborative law have formed across the country.59 In
September 2001, Texas became the first state60 to legislatively sanction the
61
A primary
use of collaborative law processes in family law matters.
rationale for seeking legislative recognition of this model of practice in
Texas was on procedural grounds 62 to allow parties to participate in a
collaborative process for seeking settlement without interference by the
63
court for up to two years.
VI. ETHICAL ISSUES JN COLLABORATIVE PRACTICE
A lawyer serving as a mediator is performing a much different
professional role than when acting in the role of an attorney representing the
interests of a client. 64 As a result, the professional standards and ethical
obligations must be different. 65 It has also been argued that a specialized
59 As of 2001, collaborative. law groups exist in at least 20 states and 11 cities in Canada.
Reynolds & Tennant, supra note 7. at 27, 29 n.6. For a listing of collaborative groups belonging
to the International Academy of Collaborative Professionals, see International Academy of
Collaborative
Professionals,
Collaborative
Groups,
available
at
http://www.collabgroup.com/group.h1m(lastvisitedJan 17, 2004).
60 Jenny B. Davis, Texas Shows Its Softer Side, State Becomes First to Incorporate
Collaborative Law Into Its Code Book, A.B.A. J., Mar. 2002, at 30, 30.
51 See, e.g., TEX. FAM. CODE ANN. § 6.603 (Vernon Supp. 2004) (authorizing use of
collaborative law processes in dissolution of marriages); TEx. FAM. CODE ANN. § 153.0072
(Vernon 2002) (authorizing use of collaborative law processes in suits affecting parent-child
relationship).
"John V. McShane, Texas in the Forefront, TEX. LAW., Dec. 24, 2001, at 43,43 (2001)
(explaining that the legislative enactment allows a case involving collaborative law processes to
be exempt from scheduling orders, other procedural deadlines and trial scheduling that would
otherwise apply for up to two years to permit full utilization of the process).
63 Davis, supra note 60, at 30.
64 See generally Laflin, supra note 36 (discussing some of the ethical issues confronting
lawyer-neutrals); Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: Nev,J Issues,
No Answers from the Adversary Conception ofLawyers' Responsibilities, 38 S. TEX. L. REv. 407
(1997) (same).
,
6s Menkel-Meadow, supra note 64, at 408--09 (arguing for separate ethical rules for ADR
practitioners since their underlying values differ significantly from those premised on an
adversary culture).
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[Vol. 56:1
set of ethical rules is justified for lawyers representing parties in mediation
as a result of the different goals in such representation."
Others have questioned whether the variety of attorney-client
relationships that exist in modern practice and the differing types of practice
lawyers engage in are well-served by a unitary model of ethical rules. 67 As
the traditional role of the lawyer continues to evolve with the introduction
of multi-jurisdictional practice:8 multi-disciplinary practice,69 unbundling
of legal services,70 lawyers acting as mediators71 or representing parties in
mediation,n consulting attorneys," settlement counsel,74 and the use of
problem-solving negotiation,75 the ethical dilemmas faced by lawyers
become increasingly more complex.
66Kimberlee K. Kovach, New Wine Requires New Wineskins: Transforming Lawyer Ethics
for Effective Representation in a Non-Adversarial Approach to Problem Solving: Mediation, 28
FORDHAM URB. L.J. 935, 943 (2001).
67Kimberlee K. Kovach, Lawyer Ethics Must Keep Pace with Practice: Plurality in
Lawyering Roles Demands Diverse and Innovative Ethical Standards, 39 IDAHO L. REv. 399, 401
(2003); Came Menkel-Meadow, The Silences althe Restatement althe Law Governing Lawyers:
Lawyering as Only Adversary Practice, 10 GEO. 1. LEGAL ETrnes 631, 636 (1997). See
Kimberlee K. Kovach, Ethics for Whom? The Recognition of Diversity in Lawyering Calls for
Plurality in Ethical Considerations and Rules afRepresentational Work, in DISPUTE RESOLUTION
ETrnCS, A COMPREHENSIVE GUIDE 57, 57-63 (Phyllis Bernard & Bryant Garth eds., 2002):
Sleven C. Krane, Ethics 2000: What Might Have Been, 19 N.lLL. U. L. REv. 323, 329-30 (1999).
68 See generally Quintin Johnstone, Multijurisdictional Practice ofLaw: Its Prevalence and
Its Risks, 74 CONN. B.J. 343 (2000): Mary C. Daly, Resolving Ethicai Conflicts in
Multijurisdictional Practice-Is Model Rule 8.5 the Answer, an Answer, or no Answer at All?, 36 S.
2004]
COLLABORATIVE LAW
153
The problem with existing rules for regulating and guiding the
professional conduct of lawyers" is that such rules are principally based on
an orientation focused on litigation in the context of an adversarial system
of justice. 77 As alternative dispute resolution and a variety of models of
non-adversarial practice proliferate and became institutionalized, questions
arise as to whether existing rules of professional conduct are conducive to
new paradigms of legal practice. 78 The question arises as to whether there
should be a separate ethical code of conduct for lawyers practicing
collaborative law. This may very well be part of a larger debate as to
whether there should be separate professional ethical standards of practice
for lawyers acting as third party neutrals representing parties in mediation
or acting as arbitrators.
The practice of collaborative law seems to place an attorney somewhere
on the continuum of a lawyer acting in a neutral, non-representational
capacity as a mediator and a lawyer acting in a representative capacity
zealously representing their client's interests."9 This may be a particularly
difficult role for a collaborative lawyer to balance:o It has been suggested
that what distinguishes collaborative law from mediation is the increased
commitment to and incentive for settlement.81 What, then, are the ethical
parameters for an attorney who aspires to engage in a model of practice
which i8 non-adversarial, offers clients the services of collaborative
problem-solving, and provides limited legal representation?
With the development of an entirely new and sometime8 undefined role
for attorneys participating ill. collaborative lawyering, a number of practical
TEX. L. REv. 715 (1995).
69 See generally John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the
American Legal Profession: A Market Approach to Regulating the Delivery ofLegal Services in
the TWenty-First Century, 69 FORDHAM L. REV. 83 (2000).
70 See generally Franklin R Garfield, Unbundling Legal Services in Mediation, Reflections of
a Family La»yer, 40 FAM. CT. REv. 76 (2002); MaSTEN, supra note 53; Forrest S. Masten,
Unbundling ofLegal Services and the Family Lawyer, 28 FAM. L.Q. 421 (1994).
71 See
generally Michael G. Daigneault, Lawyers as Mediators:
Traps
... Pitfalls .. . Hazards, FED. LAW., Jan. 1996 at 10; Laflin, supra note 36; Karen A. Zerhusen,
Reflections on the Role of the Neutral Lawyer: The Lawyer as Mediator, 81 KY. L.J. 1.165
(1992/1993).
72 See
generally James K.L. Lawrence, Mediation Advocacy: Partnering with the Mediator,
15 Orno ST. 1. ON DISP. RESOL. 425 (2000).
generally Garfield, supra note 70.
generally Coyne, supra note 55.
75 See generally Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The
Shucture ofProblem Soiving, 31 UCLA L. REV. 754 (1984).
73 See
74 See
76 The Model Rilles of Professional Conduct approved by the American Bar Association in
1983 have been adopted in whole or in substantial part by more than 40 states and the District of
Columbia. STEPHEN GILLERS & Roy D. SWON, REGULATION OF LAWYERS: STATUTES AND
STANDARDS xxv-xxvi (2002).
Krane, supra note 67, at 325; Kovach, supra note 46, at 2.
example, it has been argued that an essential ethics infrastructure is lacking to support
the developing settlement culture in contemporary legal practice. James J. Alfmi; Settlement
Ethics and Lawyering in ADR Proceedings: A Proposal to Revise Rule 4.1, 19 N. ILL. U. L. REv.
255,256 (1999); see generally Menkel-Meadow, supra note 64 (arguing that need exists for new
ethical rules to accommodate alternative dispute resolution processes).
79Lawrence, supra note 4, at 438-39. Others have disagreed with this characterization.
Sandra S. Beckwith & Sherri Goren Slavin, The Collaborative Lawyer as Advocate: -A Response,
77
78 For
18 Orno ST. J. ON Drsp. REsoL. 497, 498 (2003).
80 FORREST S. MOSTEN, THE COMPLETE GUIDE TO MEDIATION, THE CUTTING EDGE
APPROACH TO FAMILY LAW PRACTICE 1(1997).
81
Lawrence, supra note 4, at 432.
154
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[Vol. 56:1
and ethical uncertainties arise for which there may be no clear-cut answers.
Does collaborative lawyering represent a significant reorientation in a
lawyer's role in relationship to the legal system or rather another model of
lawyering intrinsically tied to the adversarial system ofjustice? It may well
introduce a model of practice that is ill-defined and without sufficient
safeguards to both attorneys and clients. There is the potential for
uncertainty as to the proper and appropriate role for the collaborative
lawyer and the danger of overstepping professional boundaries. May a
lawyer ethically aud professionally represent clients from a predominantly
collaborative orientation? This Article seeks to consider some of the ethical
issues raised by this new model of practice.
As a mediator myself, this Author values a collaborative style that seeks
to minimize conflict among parties and improve communication. This
Author ventures to suggest that a great number oflawyers would agree that
a need exists for a more collaborative and cooperative approach to the
practice of law. While promoting early settlement82 and reducing conflict
are laudable objectives, this Author is, nonetheless, cautious in endorsing
without reservation the collaborative law movement. As a relatively recent
development in the dispute resolution field, there has been very little
detailed assessment of outcomes resulting from the use of collaborative law
processes. 83
On the other hand, a great deal has been written about concerns related
to the competency, professionalism, and the ethical standards of dispute
resolution practitioners generally.84 For example, ethical dilemmas arising
in the course of mediation have been addressed by a number of
commentators. 8S In addition, various organizations have considered and
82 It should be recognized that nearly 95% of all cases filed in court are ultimately resolved
through settlement and negotiation, rather than being adjudicated in any event. Frank B.A. Sander.
The Future ofADR, 2000 J. DlsP. REsoL. 3, 5 (2000).
83 Johnston, ~upra note 1, at 470.
84 See generally John D. Feerick, Toward Uniform Standards afConductlor Mediators, 38 S.
TEX. L. REV. 455 (1997); Bobby Marzine Harges, Mediator Qualifications: The Trend Toward
Professionalization, 1997 BY1) L. REv. 687, 702-fJ7 (1997); Norma Jeanne Hill, Qualification
Requirements of Mediators, 1998 J. DISP. RESOL. 37, 44-50 (1998); Judith L. Maute, Public
Values and Private Justice: A Case for Mediator Accountability, 4 GEO. J. LEGAL ETHICS 503
(1991); Andrew Schepard, An Introduction to the Model Standards ofPractice for Family and
Divorce Mediation, 35 FAM. L.Q. 1 (2001).
85 See generally Burns, supra note 12; Robert A. Baruch Bush, The Dilemmas of Mediation
Practice: A Study ofEthical Dilemmas and Policy Implications, 1994 J. DISP. RESOL. 1 (1994);
Imperati, supra note 14; Diane K. Vescovo et aI., Essay-Ethical Dilemmas in Mediation, 31 U.
I
I
2004]
COLLABORATIVE LAW
155
•
86
11
b'tr t
87
developed standards of practice for medIators.
a~ we as. ar I a ors.
Lawyers acting as mediators present unique ethical Issues which also have
88
been addressed by a number of scholars.
In addition, professional
89
standards for lawyer-mediators have been adopted.
There are conflicting views as to the proper role and degree of
involvement by attorneys representing parties in mediatiorr" as well as
troublesome ethical issues for lawyers involved in problem-solving
negotiation.91 Furthermore, it has been suggested that a separate or, at the
very least, a supplemental code of ethics be promulgated for lawyers
representing clients iu uon-adversaria~ contel\ts,92 !nasmu~h ~ the Model
Rules of Professional Conduct have failed to focus III any slgmficant degree
93
on the duties of a lawyer representing a party in mediation.
The American Bar Association's Commission on Evaluation of the
Rules of Professional Conduct, referred to as the "Ethics 2000
Commission," recently undertook a comprehensive review of the Model
MEM. L. REV. 59 (2000).
86 See, e.g., Standards of Conduct for Mediators (American Arbitration Association,
American Bar Association, Society of Professionals in Dispute Resolution) in Feerick, supra note
84, at 478-84; Donald T. Saposnek, Academy of Family Mediators Standards of Practice for
Family and Divorce Mediation, in. MEDIATThfG CHILD CUSTODY DISPUTES, A STRATEGIC
APPROACH 339-45 (1998).
87 John D. Feerick, The 1977 Code ofEthics for Arbitrators: An Outside Perspective, 18 GA.
ST. U. L. REv. 907, 91! (2002).
88 See Edward Blumstein et a1~, Ethical Guidelines for Attorney-Mediators: Are Attorneys
Bound by Ethical Codes for Lll'Mryers When Acting as Mediators?, 14 J. AM. ACAD. MATRIM:.
LAW. 267, 268 (1997); Laflin, supra note 36, at 479-83; Menkel-Meadow, supra note 64, at 42132; Loretta W. Moore, Lawyer Mediators: Meeting the Ethical Challenges,.30 FAM. L.Q. 6:9,
684-94 (1996); Alison Smiley, Professional Codes and Neutral Lawyermg: An Emergmg
Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. 1. LEGAL ETIDCS 213, 220
(1993); Matt Wise, Separation Between the Cross-Practice ofLaw and Mediation: Emergence of
Proposed Model Rule 2.4, 22 HAMLINE J. PuB. L. & POL'y 383, 387-92 (2001).
89 American Bar Association Standards of Practice for Lawyer Mediators in Family Disputes
(1984), reprinted in JOHN S. DZIENKOWSKI, PROFESSIONAL RESPONSIBILITY STANDARDS, RULES
& STATUrES 1!87-91 (2003-fJ4).
9{1 Jean R. Sternlight, Lawyers' Representation of Clients in Mediation: Using Economics and
Psychology to Structure Advocacy in a Nonadversarial Setting, 14 OHIO ST. 1. ON DISP. REsOL.
269, 275-91 (1999).
91 See Menke1-Meadow, supra note 75, at 813-17.
92 See Kovach, supra note 66, at 954;
Carrie Menkel-Meadow, Ethics in ADR
Representation: A Road Map ofCritical Issues, DISP. RESOL. MAG., Winter 1997, at 3.
93 Jacqueline M. Nolan-Haley, Lawyers, Clients, and Mediation, 73 NOTRE DAME L. REv.
1369, 1377 (1998).
156
BAYLOR LAW REVIEW
[Vol. 56:1
Rules of Professional Conduct and, among other matters, considered
changes to address the unique ethical problems of lawyers involved in
alternative dispute resolution. 94 With the adoption of a new Rule 2.4 in
February 2002, the role of a third party neutral as distinct from that of a
lawyer acting in a representative capacity is, for the first time, explicitly
95
recognized. Nevertheless, there has been criticism that such changes have
not gone far enough in providing ethical guidance for those lawyers actively
involved in settlement activities in ADR settings!6
Significantly less has been written on the potential ethical issues arising
from the practice of collaborative law, and a dialogue on these issues is just
97
now beginning. This Author questions whether current ethical rules can
accommodate this new collaborative law model of practice. On the other
hand, at least one state ethical opinion has addressed several issues related
to the collaborative law process and allowed lawyers to offer their services
under such a model so long as their conduct is otherwise consistent with
other ethical rules. 98
Do current professional standards provide sufficient guidance to inform
the collaborative lawyer's conduct? The Model Rules of Professional
Conduct, of course, are based on the dominant practice model of an attorney
representing a client as a partisan advocate in a traditional adversarial role. 99
Can the obligation to be an advocate for a client be accommodated when a
lawyer undertakes a non-adversarial, problem-solving orientation in a
representative capacity?
Or do different goals and objectives in
collaborative law practice require the assumption of significantly different
94Douglas H. Yarn, Lawyer Ethics in ADR and the Recommendations of Ethics 2000 to
Revise the Model Rules of Professional Conduct: Considerations for Adoption and State
Application, 54 ARk. L. REv. 207, 219 (2001).
95 MODEL
96 James
COLLABORATIVE LAW
2004]
157
lawyer roles and, consequently, separate ethical rules for those lawyers
acting in a collaborative model of practice promoting different values?
The substantial lengtll of time it took for the Model Rules of
Professional Conduct to even recognize that a lawyer could act in a
nonrepresentational role as a neutral rather than as an advocate in an
adversarial setting may suggest that it will take some period of time to
resolve the ethical dilemmas for attorneys who wish to practice law
collaboratively.lOo There will likely be a number of issues to resolve and
fonn a consensus on before this model of practice is explicitly recognized
in the Model Rules of Professional Conduct.
Some commentators have criticized evaluative mediators who they
assert cannot effectivelv facilitate when they are also evaluating, thereby
assuming incompatibl; roles. 10l Similarly, are the roles an attorney
assumes as an advocate incompatible with the role assumed as a
collaborative problem-solver? How can the skills, objectives, and models
of practice be reconciled and integrated into a singular purpose? A
fundamental problem is that current ethical rules are premised on the
traditional paradigm of an attorney acting within an adversarial system
rather than a collaborative problem-solving perspective, raising new ethical
issues for which there are no clear answers.
This less adversarial orientation to lawyering,102 although offering
promising attributes, nevertheless is in its infancy and raises some difficult
ethical questions that must be resolved. l03 Consideration should be given as
well to· whether a lawyer may practice law collaboratively while, at the
same time, promoting the ethical standards of loyalty to clients, protecting
confidentiality, and avoiding conflicts of interest. Even proponents of the
collaborative law model have acknowledged the need for empirical research
to evaluate the qualitative outcomes of this relatively new alternative model
RULES OF PROF'L CONDUCT R. 2.4(.) (2004).
Alfini, E2K Leaves Mediation in an Ethics 'Black Hole', DISP. REsoL. :MAG., Spring
2001, at 3.
97 See, e.g., Beckwith & Slavin, supra note 79, at 497-98; Christopher M. Fairman, Ethics
and Collaborative Lmvyering: Why Put Old Hats on NeJv Heads?, 18 OHIO ST. 1. ON DISP.
RESOL. 505, 505-06 (2003); Lawrence, supra note 4, at 442-45.
98 N .C. State Bar, 2002 Formal Ethics Opinion 1, Gp. 1 (April 19,2002), available at 2002
WL 2029469 (endorsing a lawyer's participation in a collaborative law process although client is
required to. make full disclosure and lawyer is required to withdraw before court proceedings
commence If no settlement is reached if client consents after consultation).
99
In th e Preamble to the MODEL RULES OF PROF'L CONDUCT, at ~ 2 (2004), • lawyer's
responsibility as an advocate requires that "a lawyer zealously asserts the client's position under
the rules of the adversary system."
100 See
Fairman, supra note 97, at 511.
P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. Sr. U.
1OI Le1a
L. REV. 937, 939(1997).
102 One of the most frequent criticisms .directed against lawyers generally is that they
"exacerbate conflict benveen people." Robert F. Cochran, Jr., Professional Rules and ADR:
Control ofAlternative Dispute Resolution under the ABA Ethics 2000 Commission Proposal and
Other Professional Responsibility Standards, 28 FORDHAMURB. L.J. 895, 896-97 (2001).
103 Among the issues that the integration of ADR processes within a predominantly
adversariallegal system raises for attorneys is defining their professional identity as they attempt
to reconcile the competing objectives of problem-solving and advocacy on behalf of their clients.
Craig A. McEwen, Pursuing Problem-Solving or Predictive Settlement, 19 FLA. ST. U. L. REv.
77,87 (1991).
158
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[Vol. 56:1
of practice and study important issues connected with this model, including
. I h· I
any pot entia
et Ica concerns. 104 As the collaborative law movement
increasingly gains proponents, it is irresponsible to ignore the ethical
implications of this new orientation to practice. In fact, the complexity of
roles lawyers are assuming today, where a variety of formal and informal
methods of alternative dispute resolution have mushroomed
.
, and where
attorneys both represent parties in ADR or act as providers of ADR
services, bringing different philosophical orientations to the practice oflaw,
has required attorneys to confront ethical issues that Were not even
contemplated a decade or two ago.
VII. ETHICAL DILEMMAS RAISED BY COLLABORATIVE LAW
A preliminary question that must be resolved is whether the
collaborative law process is appropriate.
Even those promoting
collaborative law recognize its limitations and conclude that it may not be
the best choice for every lawyer, client, or dispute. I05 An attorney offering
his or her services as a collaborative lawyer must be particularly sensitive to
issues of competency and have the capacity to properly screen cases as
being appropriate for this practice model. I06 Those clients deemed best
suited for a collaborative law process I07 may be the same individuals who
would also be appropriate for mediation.
Consequently, the Article considers several of the key ethical issues
implicated by the collaborative law model ofpractice. .
A. Scope ofRepresentation
When a client decides to retain an attorney, the conventional assumption
is that the attorney will thereafter provide the full range of legal services
necessary to provide a complete resolution of their legal problem, including
104pauline H. Tesler, The Believing Game, The Doubting Game, and Collaborative LCl'tV: A
Reply to Penelope Bryan, 5 PSYCHOL. PUB. POL'y & LAW 1018, 1026-27 (1999).
105Robert W. Rack. Jr., Settle or Withdraw, Collaborative Lawyering Provides Incentive to
Avoid Costly Litigation, DISP. RESOL. MAG.; Summer 1998, at 8-9; TESLER, supra note 2, at 26.
106 Even those collaborative law practitioners who have given considerable thought to
developing screening mechanisms for detennining what type of clients are appropriate for the
collaborative law process acknowledge the difficulty of establishing reliable predictors. TESLER,
supra note 2, at 94.
107!d. at 94-95.
2004]
COLLABORATIVE LAW
159
. Iaw IS
.
representation in court, if necessary. 108 However, coII aboratlve
premised on the idea that a lawyer is retained for a hunted purpose,
settlement of the dispute without litigation. Io ,
The Model Rules of Professional Conduct allow a lawyer to limit the
scope of the representation undertaken on behalf of a client. IIO
Additionally, the comments to the Model Rules permIt an agreement by
.
which an attorney is retained to exclude specI'fiIC 0 b'~ectlves
or means. III
However, any agreement to limit the scope of representation provided by a
lawyer can become controversial when it prevents or limits the use of all
means otherwise available to accomplish a client's objectives. ll2 What
constitutes competent representation when an attorney is engaged for
limited scope representation? Of conrse, any agreement limiting the scope
of representation to be provided must otherwise be consistent with the
Rules of Professional Conduct as well as other law. 1l3
Limiting the scope of representation undertaken obligates a
collaborative lawyer to take extra care and be very explicit, both in all
discussions with the client prior to formally entering a lawyer-client
relationship as well as in any written documents such as the retainer
agreement and engagement letter, by noting the extent of t.he. re~resentatlOn
that will be undertaken on the client's behalf and any lumtatlons on the
scope, objectives, and means of their engagement. In fact, proponents ?f
the collaborative law model have suggested that a collaborative lawyer, m
.
. h th e cI·len,
t
agreementII4 WIt.
reality, enters into a limited purpose retamer
for the sole purpose of achieving a complete settlement of all Issues m the
1l5
A primary question then becomes how to i~plement s~ch, a
dispute
limited practice model without otherwIse compromlsmg the chent s
108 John C. Rothermich, Ethical and Procedural Implications of "Ghostwriting" jor Pro Se
Litigants: Toward Increased Access to Civil Justice, 67 FORDHAML. REV. 2687, 2690 (1999).
109 TESLER, supra note 2, at 4.
llo"A lawyer may limit the scope of the representation if the limitation is reasonable under
the circumstances and the client gives informed consent." MODEL RULES OF PROF'L CONDUCT R.
1.2(c) (2004).
111 Id. R. 1.2 cmt. 6.
Il2David A. Hyman & Charles Silver, And Such Small Portions: Limited Pelformance
Agreements and the Cost/Qualiu'/Access Trade-Off, 11 GEO. J. LEGAL ETIDCS 959, 970 (1998).
113 MODEL RULES OF PROF'L CONDUCT R. 1.2 cmt. 8.
114 For a sample Collaborative Law Retainer Agreement, see TESLER, supra note 2, at 13742.
115 PAULINE H. TESLER, THE BASIC ELEMENTS OF COLLABORATIVE LAW, TWENTY-ONE
ALTERNATIVES TO HIGH COST LmG. 9 (2003).
160
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interests as otherwise established by existing ethical rules. In particular, are
there ethical dilemmas for the collaborative lawyer in requiring a client to
agree, in advance, to a limited scope retainer agreement when all of the
risks and benefits of such an approach may not be known?
Several bar associations have addressed the ethical issues arising from
lawyers providing less than full representation through the unbundling of
116
legal services.
These opinions may be instructive in providing some
guidance to collaborative lawyers who intend to similarly limit the scope of
their representation.
B. Informed Consent
A collaborative law agreement, limiting the scope of representation
undertaken, clearly requires a client's informed consent. ll7 Although
mediation has been promoted as a voluntary and consensual process, some
have questioned whether it lacks the necessary safeguards to ensure that
parties give informed consent" 8 to participate in mediation and make
decisions, especially if the parties are not each represented by counsel. 1l9 A
particular concern for attorney-mediators has been the potential for
confusion of the lawyer's role as a neutral, ratller than an advocate, which
would compromise the informed consent to participate in mediation.120
However, are issues of informed consent similarly present for parties
contemplating using a collaborative law process, even when both are
independently represented by counsel? This becomes particularly relevant
for collaborative lawyers who undertake to "be directed only by the true
client, and to listen to and assist the shadow client when he or she appears,
116 Ala.
Bar Ass 'n Comm. on Ethics, Preparation of a Client's Legal Pleadings in a Civil
Action Without Filing an Entry ofAppearance, Op. 93-1 (March 19, 1993), available at 1993 WL
849636; Col. Bar Ass'n Camm. on Ethics, Unbundled Legal Services, Pannal Op. 101, available
r
2004]
COLLABORATIVE LAW
161
but not to be guided by clients in shadow states.,,121 It has been suggested
that clients involved in divorce may be "in transient states of ImpaIred
capacity to attend to long-term enlightened self-inter~st:' calling mto
question even their ability to give infonned consent to hmlt the scope of
'
Iaw proc~ss. 122
representation to be undertaken through a collb
a orabve
What are the client's objectives in electing to proceed m a col~abor~bve law
model rather than other alternatives? A collaborative lawyer IS obhgated to
make certain that a client is fully aware of the limitations imposed by the
representation to be undertaken on behalf of the client. and co~s~nt~ at the
outset. 123 The collaborative lawyer must clearly explam the hmltatlOns of
the representation in a manner understandable to tI:e client, including an
explicit delineation of the types of services ~hich WIll not. be provIded and
the probable impact of limited representatIOn on the chent s nghts and
interests.
.
To amount to informed consent, an attorney must have an assurance that
the client has been fully informed and completely understands the
collaborative law process and, in particular, that the roles and
responsibilities of each of the participants in the process are fully
clarified. 124 The Restatement of the Law Governing Lawyers similarly
approves agreements limiting the scope of representation if (I) :'tI;e client is
adequately informed and consents, and" (2) "the terms of the lumtatlOn are
reasonable in tile circumstances.,,125 The danger is that a lawyer commItted
to the collaborative law process may lack the capacity, even unconsciously,
to provide a client with a fair representation of the risks and benefits of
utilizing such a process.
While limited retainer agreements may be ethical, collaborative lawyers
must exercise caution that the agreements are not inherently misleading
where they undertake to provide limited services under circ~stances
where full representation is traditionally provided. It may be par!Jcular~y
difficult to develop collaborative law agreements that obtam a chent s
at htlp:llwww.cobar.org/statidcomms/ethics/fo/fO_101.htm(Jan. 17, 1998); Los Angeles County
Bar Ass 'n Carom. on Ethics & Profl Responsibility, Lawyers' Duties When Preparing Pleadings
or Negotiating Settlement for In Pro Per Litigant, Fonnal Gp. 502, available at
htlp:llwww.Jacba.org/showpage.cfin?pageid:q31 (Nov. 4, 1999).
Il7 MODEL RULES OF PROF'L CONDUCr R 1.2(c) (2002).
lIS Infonned consent refers to an "agreement by a person to a proposed course of conduct
after the lawyer has communicated adequate infonnation and explanation about the material risks
of and reasonably available alternatives to the proposed course of conduct." ld. R. 1.0(e).
119 See Nolan-Haley, supra note 93, at 1379-80.
120 See id. at 1379-81.
121 TESLER, supra note 2, at 81.
supra note 2, at 161.
Rack, supra note 105, at 9.
124 A lawyer is ethically required to "explain a matter to the extent reasonably necessary to
pennit the client to make infonned decisions regarding the representation." MODEL R~S OF
PROF'L CONDUCT R. lA(b) (2002). This includes the obligation to "reasonably consult WIth the
client about the means by which the client's objectives are to be accomplished." Id. R. 1.4(a)(2).
'''REsTATEMENT (THIRD) OF THE LAw GOVERNlNG LAWYERS § 19 (2000).
122 TESLER,
123 See
162
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in~0rm.ed consent in advance to the circumstances under which the lawyer
wIll WIthdraw that are clear and not misleading. 126
What particular infonnation, then, is required to be disclosed to a client
both orally and in writing, regarding the principles of collaborative law and
the risks and limitations regarding their representation in order to obtain
infonned consent? To ensure infonned consent, it may very well be
required that a client be counseled that a dishonest party could use the
collaborative law process to prolong the dispute or obtain an unfair
advantage in subsequent litigation. 127 Perhaps model disclosure fonns
provided to clients considering a collaborative law process, as well as
model limited scope retainer agreements, will be necessary to ensure fair
disclosure and informed consent.
Collaborative law, as a relatively new alternative dispute resolution
model, challenges practitioners to ensure that they have obtained the
infonned consent of their clients to participate in this nontraditional model
of practice. How this is accomplished is something on which collaborative
law practitioners must focus their attention.
C. Withdrawal ofCounsel
An ess~mtial requirement of the collaborative law process is the prior
understandmg and agreement that the lawyers for the respective parties will
withdraw if the parties are unable to achieve an agreement. 128 Might such
withdrawal unfairly prejudice the rights of a client? The question becomes
whether ethical rules governing the withdrawal of counsel might bar a
collaborative lawyer from withdrawing under some circumstances.
Rule 1.16 of the Model Rules of Professional Conduct sets forth both
129
d
. . 130
mandatory
an pennlsslve
grounds for attorney withdrawal from
representation. While Rule 1.16(b)(5) of the ABA Model Rules of
126 See e.g., N.Y. State Bar Ass'n Comm. on Profl Ethics, Confidential Communications;
Disclosure of Information Relating to Clients to Bar Association for Compilation of Statistical
Su'!'mary,.Op. 718 (July 28, 1999), available at 1999 WL 692569 (discussing the propriety of
usmg retainer agreements m domestic relations cases by which a client consents in advance that
certain events, including nonpayment of fees, will allow an attorney to withdraw from
representation).
127Reynolds & Tennant, supra note 7, at 28.
128 Lawrence, supra note 4, at 432.
I"MODEL RULES OF PROF'L CONDUCT R. 1.I6(a) (2002).
130 [d. R. 1.I6(b).
2004]
r
COLLABORATIVE LAW
163
Professional Conduct 131 appears to provide a basis for a collaborative
lawyer to withdraw from further representation if an agreement is not
reached,132 a collaborative lawyer must consider whether it is ethically
pennissible to require a client to give advance consent to withdrawal,
particularly when it may be materially adverse to the interests of the
client. 1J3 A strict interpretation of Rule 1.16 might render any fonn of
limited representation engagement, including a collaborative law model,
ethically impossible since, under most circumstances, a client would be
better served by full service representation. 134
The collaborative lawyer must be certain that the client has entered into
a voluntary and knowing agreement to limit the scope of the attorney's
representation. Does this hallmark of collaborative law potentially create
an environment where there may be substantial pressures to settle on the
part of all participants, clients, and lawyers alike, even when it may not be
in the best interests of the client? At least one state ethics opinion has
questioned the ethical propriety of a retainer agreement that gives advance
authorization for attorney withdrawal.where it would have been difficult, at
the outset of representation, to detennine if withdrawal of the attorney
during settlement negotiations could be accomplished without material
adverse effect on the client's interests. 135 Likewise, in the context of a
collaborative law process, a client may be particularly prejudiced if a
serious disagreement arises between the client and the lawyer over the
acceptable tenns of settlement of the dispute.
If and when a decision is made by the collaborative lawyer to withdraw
from the case, the lawyer will be required to follow any applicable law in
131 The ABA Model Rules of Professional Conduct allows for pennissive withdrawal from
further representation if "the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer's services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled." [d. R. 1.I6(b)(5).
132 The ABA Model Rules of Professional Conduct states: "A lawyer may withdraw if the
client refuses to abide by the terms of an agreement ;relating to the representation, such as an
agreement concerning fees or court costs or an agreement limiting the objectives of the
representation." ld. R. 1.16 cmt. 8.
133 See id. R. I.l6(b)(l) (stating that a lawyer may withdraw from representing a client when
"withdrawal can be accomplished without material adverse effect on the interests of the client").
134 Rothennich, supra note 108, at 2695.
135 Conn. Bar Ass'n Comm. on Prof'l Ethics, Retainer Agreement Providing for Attorney
Withdrawal and Conversion ofFee Agreem~nt, Gp. 95-24 (July 6, 1995), available at 1995 WL
420028.
164
BAYLOR LAWREVIEW
[Vol. 56:1
effectively tenninating the representation. 136 Furnishing good cause to the
court for withdrawal on the basis of the collaborative law agreement may
pose difficulties for the lawyer in how much information may be divulged
to avoid prejudice to the client, not unlike the lawyer who seeks mandatory
withdrawal on the basis that the representation will result in a violation of
the rules of professional conduct. 137 The question arises as to how a
collaborative lawyer resolves the dilemma which could conceivably arise
where the collaborative lawyer has made an appearance in a case so as to
require permission of the court to withdraw and thereafter seeks to
withdraw on the basis of the collaborative agreement when there has been a
failure to reach settlement but the court refuses to grant pennission.
Perhaps a Stipulation and Order for Participation in Collaborative Law
Process 138 filed in any pending suit would minimize the chances of this
occurring; however, there are no guarantees. A refusal by the court to grant
permission to withdraw by an attorney retained in a collaborative law
process may be similar to those cases in which a court refuses to allow an
attorney to withdraw even where there has been a breach of the retainer
agreement as to the payment of fees. 139 If permission to withdraw is not
granted and the lawyer must continue to represent the client, how does that
impact the collaborative law process?
Another potential ethical dilemma that arises for the collaborative
lawyer, particularly if no resolution of the dispute is achieved and the
lawyer must withdraw, is the conflict that arises between the withdrawing
attorney's ethical duty to "take steps to the extent reasonably practicable to
protect a client's interests,,140 and the limitations the collaborative lawyer
may have in sharing information or assisting in transferring the case to
· · · counseI .M1 The
·
. lawyer who is required to withdraw
I lligatlOn
co.IIaboralive
from a case, but is nevertheless prevented by the terms of the undertaking
from divulging information or assisting the client in any subsequent
The Model Rules of Professional Conduct states: "A 1a~r must comply with applicable
law requiring notice to or pennission of a tribunal when temrinating a representation. When
ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause
for tenninating the representation." MODEL RULES OF PROF'L CONDUCT R 1.16(c).
mId.R. 1.16 cmt. 3.
138Por a sample Stipulation and Order, see TESLER, supra note 2, at 146-51.
139David N. Hofstein & Sandra Simkins, Withdrawing from Representation: Model Rule
1.16 (part II ofIII): Pennissive Withdrawal, FAlR$HARE, Mar. 1996, at II.
140 MODEL RULES OF PROF'L CONDUCr R. 1.I6(d).
141 Lawrence, supra note 4, at 443-44.
136
2004]
COLLABORATIVE LAW
165
litigation, may be unable to meet the requirement that withdrawal "be
accomplished without material adverse effect on the interests of the
client.,,142 On the other hand, if the lawyer cooperates fully m transfemng
the matter to litigation counsel by sharing information gained during the
representation, this could be contrary to the principles embodied in the
collaborative law process.
At least some collaborative law practitioners acknowledge that
withdrawing counsel has an obligation to facilitate the transfer of the case to
.
. t
. t d 143
separate litigation counsel if the collaboralive process IS ermma e .
However, the extent of assistance required in making the transition to other
counsel is not entirely clear. What are the limitations on the attorney by
reason of the collaborative law agreement to facilitate the client's interests
should they retain other counsel and require the sharing of information
gained during the collaborative law process?
May the sharing of
information gained during the collaborative law process compromise the
confidentiality provisions of the agreement? These are questions requiring
some clarification,
D. Limitations on Zealous Representation
Attorneys have an ethical obligation to represent their clients
competently I44 and diligently.I4' Under the Model Code of Professional
Responsibility, originally enacted by the American Bar Association in ~969
and which preceded the adoption of the Model Rules of ProfessIOnal
Conduct, a lawyer had an explicit obligation to "represent a client zealously
within the bounds of the law.,,146 Despite changes with the adoption of the
Model Rules of Professional Conduct, the conventional adversarial model
defining a lawyer's obligation continues to be a requirement of zealous
representation of a client's interest. 147 As a resu1t, the preval'1'mg paradigm
14'MoDEL RULES OF PROF'L CONDUCr R. 1.I6(b)(1).
143 See TESLER, supra note 2, at 14.
144MoDEL RULES OF PROF'L CONDUCT R. 1.1.
145Id. R. 1.3.
14'MODEL CODE OF PROF'L RESPONSIBILITY Canon 7 (1983).
147 Although the Model Rules, on their face, no longer include an explicit requirement of
zealous representation, the comments to the Rules nevertheless require a lawyer to "take wbate~er
lawful and ethical measures are required to vindicate a client's cause or endeavor" and act "WIth
zeal in advocacy upon the client's behalf." MODEL RULES OF PROF'L CONDUCT R. 1.3 cmt. 1.
Additionally, as an advocate, a laWyer is to "zealously assert the client's position under the rules
of the adversary system." Id at pmbl; cf "A Lawyer Should Represent a Client Zealously
BAYLORLAWREVIEW
166
[Vol. 56:1
of the lawyer's responsibility is to assert any legal claim 1hat is not
frivolous and pursue 1he matter by any lawful means to maximize the
· t' s pOSItIOn.
..
14' I s tlle conventional notion of a lawyer's duty to
c Ilen
zealously represent the interests of their client incompatible wilh a
collaborative law model of practice? While a lawyer may wish to avoid an
adversarial stance, an ethical duty remains to foremost serve the interests of
the client.
While lawyers often equate legal advocacy on behalf of a client wi1h
being adversarial, such a polarized view of 1he lawyer's role in achieving a
client's objectives is not a necessary condition in all cases and under all
circumstances. 149 In fact, 1he ethical obligation of a lawyer in rendering
legal advice to a client is not limited to highlighting considerations of legal
entitlement but must refer to other factors that may be important to fulfill
client objectives. 15o As a result, an attorney may very well have a duty to
actively encourage clients to consider collaborative solutions. 151
The question a collaborative lawyer must consider is whether a lawyer
assuming the role of an advocate for a client can balance their partisan
orientation and ethical duty to provide competent representation in a
manner 1hat is otherwise conducive to collaborative problem-solving
intended to facilitate and resolve conflict. How mayan attorney e1hically
Within the Bounds of the Law," MODEL CODE OF PROF'L RESPONSIBILITY Canon 7. The
fundamental principle on which the adversary system is based is the ethical duty of zealous
representation. Janet Weinstein, And Never the Twain Shall Meet: The Best Interests afChildren
and the Adversary System, 52 U. MIAMIL. REv. 79, 90 (1997).
I4' WlLLIAM H.
SIMON, THE PRACTICE OF JUSTICE: A THEoRY OF LAWYERS' ETHICS 7
(1998). In fact, a lawyer's training and experience reinforces the objective of attaining the best
result for their client within an adversarial system. See Jeffrey W. Stempel, The Inevitability of
the Eclectic: Liberating ADRfrom Ideology, 2000 J. DISP. REsoL. 247, 275-76 (2000).
149 Benjamin, supra note 49 at 206; MODEL RULES OF PROF'LCONDUCT R 1.3 emt. I.
A lawyer must also act with commitment and dedication to the interests of
the client and with zeal in advocacy upon the client's behalf A lawyer is not
bound, however, to press for every advantage that might be realized for a
client. For example, a lawyer may have authority to exercise professional
discretion in detennining the means by which a matter should be pursued.)
150 MODEL RULES OFPROP'L CONDUCT R. 2.1.
lS1
See, e.g., ld. R. 2.1 cmt. 5; Marshall 1. Breger, Should an Attomey Be Required to Advise
a Client ofADR Options?, 13 GEO. J. LEGAL ETHICS 427, 430 (2000); Robert F. Cochran, Jr.,
ADR, The ABA, and Client Control: A Proposal That the Model Rules Require Lawyers to
Present ADR Options to ClieJ;lts, 41 S. TEX. L. REv. 183, 187 (1999); Cochran, Jr., supra note
102, at 902-09.
COLLABORATIVE LAW
2004]
167
incorporate cooperative strategies in place of more competitive strategies?
Is an attomey able to advocate on behalf of a client in the same manner if
there is an agreement made in advance that the attorney will, under no
circumstances, represent the client further if a consensual agreement is not
reached?
In the related field of mediation practice, some commentators have
argued that a lawyer's advocacy orientation is not conducive to mediation's
152
On the other hand, the practice
facilitative, problem-solving orientation.
of collaborative law has been characterized as requiring the lawyer
representing a party to walk a fine line between zealous advocacy and
· operatmg
. somewh
neutraIIty,
ere'm between. 153
Can a collaborative lawyer get sufficiently removed from the traditional
role and values encompassed within the Rules of Professional Conduct and
assume a facilitative, collaborative orientation to problem-solving? One
commentator suggests that the obligation to represent a client zealously
prevents one from exhibiting concern with the interests of the other party.in
conflict.154 However, client loyalty requires that an attorney exerCIse
professional judgment exclusively for the benefit of the client, free from
any competing or compromising influences of third partiesy5
Does loyalty to the client supercede all other professional obligations?
When roles become mixed, there are inherent conflicts that may arise. Is
the duty of zealous representation broad enough to encompass a
collaborative, problem-solving orieI;ltation to law practice?
Canan attorney assume an additional or different role aI;ld still remain
effective in the primary role as an advocate? How can a collaborative
lawyer ethically strike the appropriate balance between the seemingly
contradictory responsibilities of collaboration and advocacy, the duty to be
cooperative and competitive, at the same time?156 Is there an enforceable
duty to cooperate? What guidance is provided to collaborative lawyers on
matters involving fairness and honesty? In the mediation field, some
commentators have criticized the evaluative model of mediation on the
152 Sternlight, supra note 90, at 279-82.
153 Lawrence,
supra note 4, at 438-39.
154Riskin, supra note 28, at 14.
155 See MODEL RULES OF PROF'L CoNDuer R. 1.7(a)(2).
156 See Douglas H. Yam, The Attomey as Duelist's Friend: Lessonsfrom the Code Duel/a, 51
CASE W. REs. L. REv. 69,70 (2000).
168
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[Vol. 56:1
grounds that the roles, skills, and tasks of evaluators are significantly
different than those of facilitators. 157
Advocates of a collaborative law model of practice are guided by the
principle tlmt settlement of the dispute is the sole purpose and objective of
the representation. 15 ' Likewise, the settlement of cases is one of the
rationales offered by courts in encouraging the use of ADR generally.159
The question that arises is whether a collaborative lawyer, in the diversion
of focus to settlement and problem-solving, may either consciously or
unconsciously compromise the advocate role.
For this reason, the
collaborative lawyer must constantly be sensitive to avoiding any undue
pressures to settle. Some have suggested that it is difficult to reconcile
psychologically the dual role of being an effective advocate and
encouraging settlement. 16o This problem is not unlike that encountered by
the lawyer representing a client in mediation who faces the dichotomy of
advocating the client's best interests within a process that is collaborative
and intended to resolve conflict.'61
E. Confidentiality
Confidentiality is a fundamental principle underlying the attorney-client
relationship and a lawyer is not pennitted to reveal infonnation relating to
the representation of a client except under very limited conditions.!62
Confidentiality is critical to the collaborative law process in much the same
way that it has been recognized as essential to the success of mediation. 163
Without an assurance that frank discussions will not later be used
against them, parties will be unwilling to speak freely regarding their
interests and concerns rather than simply their positions.l 64 However,
presently there is little consistency among the states in setting the
157Love, supra note 101, at 938-39.
158 Pauline H. Tesler, Collaborative Law Neutrals Produce Better Resolutions, TwENTY-ONE
ALTERNATIVEs TO HIGH COST LITIG. 1, 3 (2003). Even the title to the article raises the
juxtaposition of an advocate as a neutral.
159 McAdoo & Hinshaw, supra note 40, at 501.
160 Coyne. Jr., supra note 55, at 369.
161 See, e.g., Peter Robinson, Contending with Wolves in Sheep '8 Clothing: A Cautiously
Cooperative Approach to Mediation Advocacy, 50 BAYLORL. REV. 963 (1998).
162 See MODEL RULES OF PROF'L CONDucr R. 1.6 (2002).
163Ellen E. Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish
Consistency or Crucial Predictability?, 85 MARQ. L. REv. 79, 79-84 (2001).
164 Zylstra, supra note 20, at 94-95.
I
i
COLLABORATIVE LAW
2004]
169
parameters of confidentiality in mediation by legislation, court rules, and
judicial decisions. 165
Absent assurances of complete confidentiality, clients may be
encouraged by their attorneys to withhold infonnation that may be adverse
to their interests. 166 Even proponents of the collaborative law process
recognize the ethical tension that may arise for the collaborative lawyer in
encouraging full disclosure of infonnation required by the process and the
duty of advocacy for an individual client. 167 The dilemma arises in deciding
how to share infonnation in a manner that ultimately does not compromise
the client's ability to satisfY their interests by other methods should a
settlement not be achieved.
A primary barrier to encouraging effective communication between
adverse parties is the constant concern that disclosure of confidential
infonnation may be utilized in some manner to the disclosing party's
disadvantage.16' There is some uncertainty as to whether documents
disclosed and statements made by participants in a collaborative law
process would be protected by the confidentiality provisions that may apply
to other ADR procedures. 169 Withdrawal. of collaborative lawyers If
settlement fails may not be enough to protect the parties and promote
openness in the collaborative process, particularly if the collaborative
lawyer consults with trial counsel who takes over the matter and discloses
otherwise confidential infonnation, or if the collaboratIve lawyer IS
subpoenaed for deposition or trial in the ensuing litigation.
Is there a need for a privilege regarding communications or disclosures
made in the collaborative law process in much the same way that it
developed with respect to mediation? On the other hand, it may be easier,
rather than creating an entirely new privilege, to simply adopt a special rule
relating to the attorney-client privilege that would clearly specifY that
disclosures to another party or their attorney in any collaborative law
process do not constitute a waiver of the attorney-client privilege. There
should be recognition that the potential exists that a party could take
advantage of the collaborative process to gain an advantage in subsequent
165Deason, supra note 163, at 89-95.
supra note 163, at 84-85.
167Beckwith & Slavin, supra note 79, at 501-02.
168 Deason, supra note 163, at 8l.
169 Reynolds & Tennant, supra note 7, at 28-29.
166 Deason,
170
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litigation, and appropriate measures taken to prevent such an abuse of this
process.
F. COlJlpetence ofCounsel
What are the appropriate qualifications for lawyers holding themselves
out as collaborative lawyers? As a relatively new model of practice, it has
been suggested that no extensive formal training is necessary, nor is there
any certification or licensure required even though mediation training is
often helpful in making a transformation from adversarial orientation to
I70
collaborative style.
On the other hand, even proponents of this model of
practice acknowledge that practicing collaborative law is not easy and
holding oneself out as a collaborative law practitioner is not enough to
ensure competent representation. l7l
Competency includes not only
knowledge in the substantive area undertaken on behalf of a client, but also
the skills and a thorough understanding of the processes to be used by the
lawyer in realizing the client's goals and objectives. 172
Just as the field of family mediation has resulted in a number of
variations of professional practice models and theoretical approaches,173 it
is likely that the practice of collaborative law will result in extremely
diverse methods of practice making it difficult to treat it as a unitary model.
However, without some ethical guidelines to provide direction and
guidance to collaborative practitioners as to their appropriate role and
responsibilities, each lawyer will be left individually to define their own
course of conduct that could prove harmful to the collaborative law
movement. 174 In the field of mediation, the ethical guidelines and
qualifications for mediators have been the subject of considerable
.
.
.
comment ary. 175 These same 1SSUeS
W1'11 be 1mportant
to cons1der
and
resolve for the collaborative lawyer.
170 Webb,
supra note 48, at 7.
171 TESLER, supra note 2, at 23-24.
I72Kimberlee K. Kovach, Lawyer Ethics Must Keep Pace with Practice:
Plurality in
Lawyering Roles Demands Diverse and Innovative Ethical Standards, 39 IDAHO L. REv. 399,
423-24 (2003).
173 Kruk, supra no1e 18, .,195 (1998).
174Kovach. supra note 172, at 414.
175 See generally Feerick, supra note 84; Jamie Henikoff & Michael Moffitt, Remodeling the
Model Standards a/Conduct/or Mediators, 2 &R.V. NEGOT. L. REV. 87 (1997); Imperati, supra
note 14; Laflin. supra note 36; Donald T. Weckstein, Mediator Certification: Why and How, 30
U.S.F. L. REV. 757 (1996).
2004]
COLLABORATIVE LAW
171
Some have suggested that collaborative lawyers who have r~ceived
training and experience in mediation n:ay no~ easily transfer the skills and
training to a representational role wh11e satisfymg the1r. duty to prov1de
competent representation to clients. 176 What determmes :vhether an
outcome is fair and just, resulting from competent representatlOn? What
role should law play in assessing the substantive fairness of any outcome? .
G. Conflict ofInterest
The argument has been made that lawyers may have a conflict of
interest when expected to recommend ADR to their clie~t~, part1cularly
where ADR would require less of their time than more tradi~~nal f?rms of
representation and the attorney is paid on an hourly baS1S.
Th1S. same
conflict of interest presumably would arise in recommendmg a
. .
.
collaborative law approach to other forms of ADR.
Model Rule 1.2(a) allocates lawyer and client . dec1slOn-m~~g
responsibility. In part, it states that "a lawyer shall ab1de by a chent s
decisions concerning the objectives of representatlOn and ... shall consult
with the client as to the means by which they are to ~e pur~ued."178 It has
been argued that a collaborative lawyer.has an. mcenl1ve to re~ch a
settlement because of their obligation to w1thdraw 1f an agreement 1S not
reached. However, does this self-interest in settlement potentially present
challenges to ensuring that the parties evenl1lally reach. a volm:tary
settlement that is in the client's best interest? Does th1S potentially
compromise the value of self-determination?
It has been suggested that some forms of mediation pr~ctice incorporate
procedures that inevitably result in forced se~lements, partlcularly whe~ the
lack of reaching an agreement is seen as a fa11ure on the part of the media~or
and the parties. 179 There is the danger that a settlement-driven collaborative
law practice will also call into question whether the outcomes are truly
voluntary when the failure to reach settlement will result in the loss of a
client to another lawyer.
Proponents of collaborative law suggest that .both the client and lawyer
have an incentive to work cooperatively m arnvmg at a .settlement because
the lawyer would otherwise be out of a job, and the chent would need to
176 Arnold,
supra note 52, at 1095.
177 Cochran,
Jr., supra note 102, at 901.
17SMoDEL RULES OF PROF'L CONDUCT R. 1.2(.) (2002).
179Paquin & Harvey, supra note 13, at 167.
172
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[Vol. 56:1
incur additional expense in hiring litigation counsel. 180 In fact, the
originator of the collaborative law movement, Stu Webb, suggested that
"the bottom line is finding a way for the parties to reach agreement on all
relevant issues.,,181 We must ask whether a principal goal of collaborative
law is to achieve settlement. Does it unnecessarily focus on process
without considering the outcome achieved? While admittedly the client has
the fmal authority on the settlement of a matter, 182 there can nevertheless be
significant pressure, both subtle as well as direct, by the lawyer in
recommending settlement without adequate consideration of how the
outcome will satisfy all of the client's interests.
Many practitioners who have embraced the collaborative law model
have formed
groups of similarly inclined attorneys for training and
183
The question that arises is whether membership in such groups
support.
creates a conflict of interest, .particularly if the group has the authority to
admit and exclude members. If not creating an actual conflict of interest, it
may at the very least create the appearance of a conflict for clients who
become aware of their attorney's participation and membership in such a
group.
VIII.
CONCLUSION
While supportive of efforts to reduce conflict and divert family caSes
from the adversary system and sympathetic to the objectives of
collaborative law, the potentially complex ethical issues that this new model
of practice raises cannot be ignored. 1S4 It may be that the existing rules of
180 McShane, supra note 62, at 43 (suggesting that what sets collaborative law apart from
other forms of dispute resolution is that both the client and lawyer have an incentive to reach
settlement).
18J Webb ,
supra note 48, at 7.
182MODEL RULES OF PROF'L·CONDUCT R. 1.2(a).
supra text accompanying note 59.
183 See
184 A
proponent of collaborative law has stated its objectives in the following manner:
[T]he aim of collaborative law is to ameliorate (for clients, their families,
their lavvyers, and the communities we all live in) the avoidable hanns
caused by single-minded, indiScriminate resort to the legal procedures that
are collectively referred to ... as the adversarial model, while still
maintaining all professional standards for representing client') within the
scope ofthe collaborative contract.
Tesler, supra note 104, at 1019. Ideally, as lavvyers, we should all strive to become more
collaborative lavvyers and be supportive of the concept of collaborative problem-solving.
COLLABORATIVE LAW
2004]
173
must be redefined to allow for alternative
professional cfonduc~ for l~~~:suring that clients continue to be served by
conceptIOns 0 prac ce w
.
fessional standards of conduct.
ethical practitioners who. meet ~If~:::P:~eter lawyers from transforming
o
The complexity of these IssuelSI sbooruati've problem-solving orientation that
I'
fces to a more co a ,
.
d th
~~:sP:~~~atives to the tra~;tion~l;:~Ot~ ~~::~ut~~:~~~~:oi~: s t b~
potential to be more persona y s~ IS t ethical issues that may arise.
approached with careful a~ens~o~nd:nental rethinking of the traditional
Collaboratlve lawyermg reqUire
. .
thi al
lawyering paradigm.
. In the related field of mediation, the promulgatlO~ o~ Varl~U~yeth~se
d
dards of practice responded to a perceive nee
codets an
a problem-solving, facilitative perspective to developha
:~~
~~~~el::~~
guided by st~dards ofthconduct ananndeexre~h~~~~~;gn:~l~~~~lt o~
.
f
.
proVided In e same m
,
furth~
clarification and defmition as to methods,
quality 0 services.
r
.
.d onduct
practICe may reqUire
f;'.
the
acceptable standards of practice, and ethical codes to gul e c
We must achieve some consensus on cntlcal Issues I ahc:ng
d
. h
to preserve fundamenta et Ical an
collabo:-ative law move:.~nt,~'\i~:ng a model of practice built on
professIOnal values w Ie. aCI
is will re uire consideration of
collaborative problem~s?lvmg. ll~s on oing ~aining and evaluation.
professional accountability as we
. . g
.
0 other models of
While collaborative law may be a prOlnJ.smg altetrnathlv;h:r it leads to more
.
h ld
rtheless be cautIOus as owe
practICe,
s oufor neveI
.
Iv ed at the expense of client interests.
satisfyingwe
results
the awyers mvo