September 01, 2011

Before You Take a Collaborative Law Case

Under the Model Rules Of Professional Conduct, lawyers have a duty to screen potential Collaborative Law (CL) cases for appropriateness and obtain clients’ informed consent to use CL. The duty to screen cases is based on the “reasonableness” requirement of Rule 1.2(c) and the requirement to avoid conflicts of interest that might interfere with competent and diligent representation under Rule 1.7. Both rules require lawyers to obtain clients’ informed consent to participate in a CL process. Although the Uniform Collaborative Law Act is not an ethical rule, sections 14 and 15 create relevant duties, including detailed provisions requiring lawyers to make certain disclosures, provide prospective clients with information needed to make an informed choice of dispute resolution process, inquire about and discuss the appropriateness of CL, and create a presumption against using CL in cases involving a history of a coercive or violent relationship. (The Uniform Law Commission approved the Uniform Collaborative Law Act at its July 2009 meeting. In response to criticisms by some members of the American Bar Association, the commission made some changes not relevant to this article. See Uniform Law Commission, Uniform Collaborative Law Act.) Collaborative law is an impressive dispute resolution process that offers significant benefits for disputants in appropriate cases. In CL, lawyers and clients sign a four-way “participation agreement” promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of the participation agreement is the “disqualification agreement,” which provides that both parties’ CL lawyers would be disqualified from representing the clients if the case is litigated. The disqualification agreement is intended to motivate parties and lawyers to negotiate constructively because termination of a CL process would require both parties to hire new lawyers if they want legal representation. Although a CL process can be used in many types of cases, almost all cases to date have been in family law matters.

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