What the ethical rules say about conflicts of interest, client screening and informed consent.
By John Lande, Professor/Director/Author (Missouri) and Forrest S. Mosten, Family Lawyer/Mediator/Author (California)
Under the model rules of professional conduct, lawyers have a duty to screen potential Collaborative Law (CL) cases for appropriateness and obtain clients’ informed consent to use CL. The duty to screen cases is based on the “reasonableness” requirement of Rule 1.2(c) and the requirement to avoid conflicts of interest that might interfere with competent and diligent representation under Rule 1.7. Both rules require lawyers to obtain clients’ informed consent to participate in a CL process. Although the Uniform Collaborative Law Act is not an ethical rule, sections 14 and 15 create relevant duties, including detailed provisions requiring lawyers to make certain disclosures, provide prospective clients with information needed to make an informed choice of dispute resolution process, inquire about and discuss the appropriateness of CL, and create a presumption against using CL in cases involving a history of a coercive or violent relationship. (The Uniform Law Commission approved the Uniform Collaborative Law Act at its July 2009 meeting. In response to criticisms by some members of the American Bar Association, the commission is considering some changes not relevant to this article. See Uniform Law Commission, Uniform Collaborative Law Act.)
Collaborative law is an impressive dispute resolution process that offers significant benefits for disputants in appropriate cases. In CL, lawyers and clients sign a four-way “participation agreement” promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of the participation agreement is the “disqualification agreement,” which provides that both parties’ CL lawyers would be disqualified from representing the clients if the case is litigated. The disqualification agreement is intended to motivate parties and lawyers to negotiate constructively because termination of a CL process would require both parties to hire new lawyers if they want legal representation. Although a CL process can be used in many types of cases, almost all cases to date have been in family law matters. It is especially important for lawyers to screen cases and obtain informed consent to use CL before their clients engage in the process. By definition, parties in CL risk losing the continued representation by their CL lawyers and, under standard professional procedures, once parties have signed a participation agreement, they cannot mutually rescind the disqualification agreement. Section 4(b)(2) of the Uniform Collaborative Law Act would codify that practice by prohibiting parties from waiving the disqualification agreement. Since the disqualification provision is irrevocable and disqualification can have significant consequences, the precautions of screening and obtaining informed consent prior to representing parties in CL are quite appropriate.
Limiting the scope of representation Rule 1.2(c) of the Model Rules of Professional Conduct states, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” When lawyers provide CL representation, they limit the scope of their representation by excluding the possibility of representing CL clients in litigation. ABA Formal Ethics Opinion 07-447 (2007) confirms that CL is a “permissible limited scope representation under Model Rule 1.2, with the concomitant duties of competence, diligence, and communication.” To date, ten state bar associations and the ABA have issued ethical opinions about CL. Except for the Colorado opinion, all have indicated that CL practice can comply with the applicable ethical rules.
The Colorado opinion states that CL is an impermissible conflict of interest where lawyers enter contractual agreements requiring them to withdraw if the CL process is unsuccessful, though the process does not violate the rules if the parties, but not the lawyers, execute the participation agreement. Colorado Bar Ass’n Ethics Comm., Formal Op. 115 (2006). Of course, lawyers are governed only by binding opinions in their jurisdictions. Ethics opinions governing CL are posted on the website of the ABA Section of Dispute Resolution’s Collaborative Law Committee, http://www.abanet.org/dch/committee.cfm? com=DR035000. Kentucky Bar Association Ethics Opinion E-425 (2005) states, “A lawyer cannot advise a client to use the collaborative process without assessing whether it is truly in the client’s best interest.” Pennsylvania Informal Opinion 2004-24, 2004 WL 2758094 (2004), states that CL lawyers “must consider each client’s situation (especially those who are victims of domestic violence) when deciding whether a Rule 1.2(c) limitation on the scope of representation is reasonable and whether [they] can, indeed, provide competent representation to a client under the limited scope of representation.” New Jersey Ethics Opinion 699, 14 N.J.L. 2474, 182 N.J.L.J. 1055, 2005 WL 3890576 (2005), provides some elaboration: Whether the limitation that forbids a lawyer engaged in collaborative practice from participation in adversarial proceedings is “reasonable” within the meaning of [Rule] 1.2(c) is a determination that must be made in the first instance by the lawyer, exercising sound professional judgment in assessing the needs of the client. If, after the exercise of that judgment, the lawyer believes that a client’s interests are likely to be well-served by participation in the collaborative law process, then this limitation would be reasonable and thus consistent with [Rule] 1.2(c).… However, because of the particular potential for hardship to both clients if the collaborative law process should fail and an impasse result, we think it appropriate to give some more specific guidance to the Bar as to when this limitation upon representation is “reasonable” under the circumstances. Thus, given the harsh outcome in the event of such failure, we believe that such representation and putative withdrawal is not “reasonable” if the lawyer, based on her knowledge and experience and after being fully informed about the existing relationship between the parties, believes that there is a significant possibility that an impasse will result or the collaborative process otherwise will fail. Books written by CL experts identify factors regarding appropriateness of CL including:
- the motivation and suitability of the parties to participate effectively in a collaborative process,
- the trustworthiness of the parties,
- whether a party is intimidated from participating effectively in the collaborative process,
- whether there has been a history of domestic violence between the parties,
- whether a party has a mental illness,
- whether a party is abusing alcohol or other drugs,
- whether the lawyers are suitable for handling the case collaboratively,
- whether the parties would use professional services in addition to collaborative legal services,
- the parties’ ability to afford to retain new lawyers if the collaborative process terminates without agreement, and
- the parties’ views about the risks of disqualification of lawyers and other professionals in the case. See John Lande and Forrest S. Mosten, “Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law,” 25 Ohio State Journal of Dispute Resolution 347 (2010).
Continued in Part 2
John Lande is the Isidor Loeb Professor and Director of the LLM Program in Dispute Resolution at the University of Missouri School of Law. He is an award-winning writer who has written extensively about cooperative and collaborative processes. He may be reached at www.law.missouri.edu/lande/.
Forrest S. Mosten is a Certified Family Law Specialist in Los Angeles. He handles complex estates and high-conflict divorce matters and specializes in negotiating and drafting premarital and postmarital agreements. He serves as Adjunct Professor at UCLA School of Law, is the author of Collaborative Divorce Handbook (2009), and is the editor of Family Court Review’s special issue on collaborative law to be published in April 2011. He may be reached at www.mostenmediation.com.
This article is adapted from John Lande and Forrest S. Mosten, “Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law,” 25 Ohio State Journal on Dispute Resolution 347 (2010). FALL 2010 35 The Kentucky opinion indicates that mere signing of a CL participation agreement is insufficient to constitute informed consent. Reprint with permission.