Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering

Abstract

This Article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This Article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based joint problem-solving, collaboration with professionals in other disciplines, and intentional development of a new legal culture through activities of local practice groups. Although the DA is undoubtedly helpful in many cases, it also can invite abuse by inappropriately or excessively pressuring some parties to settle when it would be in their interest to litigate. It is unclear whether the DAs violate rules of professional conduct governing withdrawal of attorneys. This Article encourages courts and ethics committees to permit people to use them unless and until there is evidence that they produce a significant risk of serious harm. The Article also urges CL practitioners to experiment with "cooperative negotiation," i.e., using CL techniques without the DAs. CL groups should cooperate with empirical researchers to determine how much the benefits of CL are caused by these agreements as compared with other aspects of the process.

Keywords: Collaborative law, negotiation, problem-solving, professional responsibility, dispute resolution

JEL Classification: K42