Growing Pains: Collaborative Law and the Challenge of Legal Ethics

Abstract

Growing Pains: Collaborative Law and the Challenge of Legal Ethics, explores the continuing challenge to collaborative law presented by ongoing questions of compatibility with legal ethics. After describing the current landscape of collaborative law, Growing Pains concentrates on three major developments in 2007 concerning the ethics of this interest-based, settlement-oriented dispute resolution process. In February 2007, the Colorado Bar Association Ethics Committee issued the first opinion in the country declaring collaborative law per se unethical. This article examines Colorado Opinion 115 and the reaction to it and ultimately concludes that it is unlikely to have much direct effect on collaborative law. Nonetheless, Growing Pains voices concern that Opinion 115's approval of an offshoot of collaborative law called cooperative law risks creation of an ADR turf war. Next, the article highlights the National Conference of Commissioners on Uniform State Laws (NCCUSL) effort to create a Uniform Collaborative Law Act. A NCCUSL Drafting Committee has already produced a working draft of a model act. Growing Pains describes the current drafting effort and its core feature being provisions to answer ethical concerns about confidentiality and privilege. The third ethical milestone explored in Growing Pains is the latest formal ethics opinion by the ABA Standing Committee on Ethics and Professional Responsibility. Released in October 2007, ABA Opinion 07-447 squarely addresses the compatibility of collaborative law with the Model Rules limitation on the scope of representation and concludes there is no violation. Characterizing these events as growing pains for collaborative law, Fairman concludes that unanswered ethical questions and challenges from an increasingly nuanced model of collaborative practice continue to provide challenges for this ADR process. Nonetheless, while ethical concerns are real and potentially limiting to the growth of the collaborative practice, our existing ethics regimes, along with proposed modifications, can respond to these challenges.

Keywords: alternative dispute resolution