• ABA Concludes Limited Representation in Collaborative Law Practice Does Not Violate Ethics if Informed Consent is Obtained
  • November 19, 2007
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Brief Summary
    If a client gives informed consent, a lawyer may represent the client in a collaborative law process. Nonetheless, the lawyer is still bound by the rules of professional conduct, including the duties of competence and diligence.

    Complete Summary
    The ABA committee addressed the issues presented by the collaborative law process, which is most often used in family law settings but is gaining popularity in other types of cases where parties are likely to have continuing relationships after a particular dispute is resolved. Collaborative law is an alternative dispute resolution method that shares many attributes with mediation. In a collaborative law practice, the parties usually enter a “four-way” agreement in which the clients and their lawyers agree to attempt settlement without court intervention, with the goal of reaching a result that meets the clients’ needs. To ensure that the lawyers are invested in the collaborative nature of the process, the lawyers agree that if the process breaks down, they will withdraw from the representation and not be involved in subsequent court proceedings between the parties.

    The ABA committee noted that most state bar ethics opinions that have addressed the issue (other than one opinion in Colorado) have concluded that the “four-way” agreement in collaborative law practice is a form of limited scope representation which is not inherently inconsistent with the Model Rules. These opinions also recognize that the collaborative practice has the potential for significant ethical problems. The ABA agreed that the provisions of the four-way agreement represent a permissible limited scope representation under Model Rule 1.2 as long as the duties of competence, diligence and communication are maintained. The ABA committee rejected the position that the collaborative law practice presents a non-waivable conflict under Rule 1.7(a)(2). Informed consent to the client is a key component in these scenarios. Lawyers must give adequate information about the rules and contractual terms governing the collaborative process, the advantages and disadvantages, and the alternative. Lawyers must also assure that their clients understand that if the process fails, the lawyers must withdraw and the clients would then be required to retain new counsel for any further litigation.

    Significance of Case
    In its opinion, the ABA recognized the rapidly spreading use of collaborative practice to settle disputes and preserve relationships between parties who need to maintain ongoing relationships. Although the limited scope of representation in these cases carries increased risk of ethical problems, it does not inherently violate the Rules of Professional Conduct.