Professional Rules and ADR: Control of Alternative Dispute Resolution Under the ABA Ethics 2000 Commission Proposal and Other Professional Responsibility Standards
20 Pages Posted: 22 Oct 2008
Date Written: 2001
Ensuring that the client and not the attorney controls the decision to choose Alternative Dispute Resolution (ADR) is critical because the decision deeply impacts the time, financial, and relational expenses required for ADR, as well as the kinds of outcomes possible. Also, lawyers are likely to have a conflict of interest when making this decision for the client. The ABA Ethics 2000 Commission's Proposed Rules are the first major overhaul of the Model Rules of Professional Conduct since 1983 when ADR was in its infancy. Cochran looks at current professional rules and the Commission's proposed rules of 2000 and the models they employ to protect clients' ability to choose ADR. Under current rules, jurisdictions have extended measures to encourage or require attorneys to consult clients or to inform clients concerning ADR. Cochran finds that new Proposed Rules fall short of guaranteeing client control over ADR decisions and shows how the Proposed Rules move away from client autonomy and towards lawyer paternalism. Two alternative proposals are presented: the informed consent model, which proposes requiring client's informed consent to litigate a case; and the client choice model, which requires the lawyer to defer to client's decision to pursue ADR. Both proposals suggest additions to Model Rule 1.2(a), which explicitly gives clients control over the decision to use ADR and requires attorneys to provide the information needed to make such a decision.
Keywords: alternative dispute resolution, model rules of professional conduct
JEL Classification: K49
Suggested Citation: Suggested Citation