Saturday, March 10, 2007
Posted by Alan Childress
We have previously posted here, here, and here on "unbundled" legal services (a/k/a "limited representations"), where lawyers provide pieces of legal service to largely self-help clients. Many states, we noted, are approving the role, especially in certain courts or practices like family law. A hybrid and more integrated form of that in family law and other practices, called "collaborative law," has been presented as growing and here to stay. It involves disputing parties and their lawyers agreeing upfront that the clients will be enabled to do much of their own dispute-resolving, with the lawyers there for assistance and legal structure -- but that those lawyers will not go to court if the talks fail. The agreement also provides for full disclosure of relevant information.
The plan goes beyond mediation in the sense that the lawyers are actively involved in the process but without the threat of their own involvement in litigation. It is seen as client-empowering and only working with those whose main goals are cooperation and long-term practicality, and assumes some client sophistication and understanding. The goal is to stay out of court. In this sense it is very different from typical "limited representations," which are often used to facilitate court matters by prepping witnesses and ghost writing briefs. But it certainly limits upfront the goals and scope of this particular lawyer-client representation.
A Colorado state bar ethics committee has issued somewhat of a rejection of the notion that lawyers can ethically participate in collaborative law without risking conflicts of interest and violating an unflagging duty to their own client. [Link here to a downloadable version helpfully posted by idealawg. The opinion is dated Feb. 24, 2006, but I think it is really a 2007 ruling. I glean this not only from the sudden buzz on it among family law blogs but also because the opinion cites handbooks and law review articles from 2006 that I doubt would have been out by 2/06.]
The problem is perceived as one where the lawyer has agreed in advance to look out for the other client's interest and is not in a position to urge litigation where that is what may be best for his or her own client. The opinion's focus is on the pre-agreement that the lawyers sign and the ways they are limiting themselves in advance, said to be violating the Rule 1.7 duty not to allow third party interests (the other client's) to materially limit what they would be doing with their own client (like filing a motion in court). Specifically, the ethics opinion ruled that the standard lawyer agreements used in such collaborative plans are per se unethical.
There are helpful posts and comments on this ruling here and here. The latter blog, by John Crouch, criticizes the Colorado opinion as too patronizing to clients and not recognizing that the lawyer has given up a piece of his or her normal zealousness at the insistence of the client. So it is not correct to view the limitation as one inconsistent with doing what is best for the client as the client perceives it. In other words, even if the lawyer could not unilaterally take on a role that represents one client while considering the preferences and interests of the opposing client, in this arrangement the lawyer does so because that is what the client wants and agrees to. The lawyer can still advise the client to go to court but has simply agreed not to be part of that. "Just to clarify, collaborative clients do not give up the right to litigate. They only give up the right to litigate with the particular lawyers they hired."
Despite his view that the ethics opinion is wrong, Crouch goes on to say that the same result can be obtained by having only the two clients sign the agreements. I am not so sure that the ethics opinion would be as approving of that way around its essential problem with this arrangement. Crouch may be right in suggesting that this bar committee has a (my characterization) truncated and client-disabling view of the zealous lawyer in family law conflicts. But, if so, I doubt those with such a gung-ho conception of lawyer zeal would be very approving of facilitating clients' agreements in such a way either. Still it remains to be seen whether other states will view these agreements the same way, or whether the suggested solution of client-only agreements maintains the positives, structure, and binding power of collaborative law while passing ethical muster in various states.