Ethical Issues in Collaborative Lawyering

Abstract:     
Collaborative law practice represents the newest development in alternative dispute resolution in family law practice. At present, few mechanisms are in place to regulate or standardize collaborative practice. There are an astounding variety of agreements that are called "collaborative law" between individual clients and attorneys, between clients themselves or between all clients and all attorneys many of which may be inconsistent with emerging collaborative norms in the family law bar. Little formal regulation of the ethical aspects of these agreements exists. Three states (California, North Carolina and Texas) have statutes regulating collaborative practice and the National Conference of commissioners of Uniform State Laws has created a Drafting Committee on a Collaborative Law Act. While there are no reported cases, ethical analysis of collaborative law has been provided by state and ABA ethics opinions.

This article analyzes some of the issues raised by these ethics opinions and regulations including competence, limited scope representation agreements, client communication, informed consent and withdrawal terms. It explores the balance between these agreements and what some would consider "zealous advocacy" and whether the four-way disqualification agreement presents an unethical conflict of interest. It closes with an examination of the proposals for a collaborative law communications privilege.

Number of Pages in PDF File: 18

Keywords: Collaborative law, Alternative dispute resolution, Family law, Professional responsibility, Ethical practice of law, Limited scope representation, Withdrawal from representation, Client communication, Informed consent, Zealous advocacy, Four-way disqualification agreement, Communication privilege

JEL Classification: D74, J12, K10, K40

Accepted Paper Series