The practice of Collaborative law (CL) is increasingly recognized as one option available to clients in a spectrum of legal services and dispute resolution processes. The Uniform Law Commission enacted the Uniform Collaborative Law Act (UCLA) on July 15, 2009, to establish uniformity in the practice of CL and to address ethical issues for lawyers inherent in this practice.
Unique to CL is the Participation Agreement that contains core elements of the process which include:
- stay of court proceedings, subject to limited exceptions;
- waiver of privileged communications;
- waiver of formal discovery – commitment to voluntary disclosures; and,
- withdrawal of the attorneys if the process terminates without a resolution.
The process is initiated with the parties signing the Agreement and the attorneys signing an acknowledgment that their representation is limited to the CL process. In concrete terms, this means that the attorney who signs the Agreement must withdraw their representation of their client if the CL process is terminated and the matter proceeds to litigation.
Rule 1.7(a)(2) Concerning Conflicts Of Interest: Current Clients provides in pertinent part: “in addition to conflicts with other current clients, a lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyers’ responsibilities to other persons, such as fiduciary duties arising from the lawyers services as a trustee, executor, or corporate director.” The “third party” or “other person” would be the other party to the CL process.
An impermissible conflict exists between a lawyer and a client if there is a significant risk that the representation will be materially limited. However, representation is permissible where the client gives informed consent and the lawyer believes he or she is able to provide competent and diligent representation.
The question is whether a conflict arises from the foreclosing of the litigation alternative with this particular attorney because the client has chosen to limit the collaborative attorney’s representation solely to negotiating a settlement. A party or both parties to the dispute may end the CL process at any time and the case can then originate or continue in litigation, mediation, arbitration, or any other form of dispute resolution that the parties choose. It is not obvious that simply being engaged for the limited purpose of the CL process would impair the lawyer’s judgment or ability to advise a client to consider terminating the CL process and proceed with the litigation.
The desire to limit one’s practice to a specific area is a consideration for all attorneys when accepting employment by a client. Like any other lawyers, the CL attorney must reasonably believe that they can provide competent and diligent representation to each client that they agree to represent, just as trial attorneys must be cautious when accepting clients who wish to settle their disputes rather than move to the courtroom where the trial attorney’s talents and interests lie.
In a context of a Collaborative Divorce case, a fundamental premise of the CL is that the parties will have “skin in the game” by agreeing to terminate representation with the collaborative attorneys in the event one or both seeks to litigate. I would submit that the additional inconvenience of needing to start over again with a new attorney is not substantially different from when a domestic client changes attorneys in the typical litigated case.
In summary, an attorney’s decision to limit their practice to a particular area is an ethical consideration for all attorneys and is not rendered unethical by the Collaborative Process. Certainly the CL attorney is well served by the Agreement which clearly spells out the mandatory withdrawal mechanism.
Peter E. Bort, Esquire