The prototypical model of collaborative law in divorce requires opposing attorneys to withdraw from representation upon the collapse of the negotiations.
By Marshall J. Wolf, Family Lawyer
In August, 2011, the House of Delegates of the American Bar Association overwhelmingly rejected, by a vote of 154-298, the Uniform Collaborative Law/Rules Act promulgated by the Uniform Laws Commission (ULC), formerly National Conference of Commissioners on Uniform State Laws (NCCUSL). Among the many objections to Collaborative Law in general and the proposed Uniform Act in particular was the ethical questions raised by the practice of Collaborative Law in Divorce. Several cases have raised ethical warnings to attorneys who so enthusiastically are embracing collaborative law in divorce as the best thing since sliced bread. The New Jersey case will be discussed below, but North Carolina is similar. Colorado simply says Collaborative Law is unethical.
Prototypical Model of Collaborative Law in Divorce
The prototypical collaborative law model requires both parties’ attorneys to withdraw from representation upon the collapse of the negotiations. The New Jersey Supreme Court Advisory Committee on Professional Ethics, in its opinion dated December 12, 2005, points out that this type of limited representation requiring withdrawal would undoubtedly work a hardship on the client, and most clients simply do not comprehend the concept of limited representation.
The opinion points out that, because collaborative law practice is at some variance with the ethical duty to zealously represent the client, questions arise as to its compatibility with the Rules of Professional Conduct. In particular, the decision states that the requirement that both attorneys withdraw in the event of impasse, “. . . requires very direct disclosures to the client about the risks of a failed process, including specifically the risk of fees paid to that point becoming waste and a knowing consent to those risks by the client.” (Emphasis supplied).
The New Jersey opinion stated that, before agreeing to representation in the so-called collaborative law process, the lawyer (1) must conclude that the cooperative mediation will serve the client’s interests; and (2) must take extraordinary steps to alert the client to the significant risks and potential harm to the client if the collaborative law model fails in order for the client to provide informed consent to entering the process.
Limitation on the Scope of Representation
First, the opinion points out that, because of the requirement to withdraw, “. . . in some sense, the client’s continuing relationship with the lawyer is at the discretion of the opposing spouse.” Therefore, the decision opines that the representation in the collaborative law process is to be viewed as a limitation on the scope of representation. The question, therefore, is whether such limitation is “reasonable” within RPC 1.2(c). This decision must be made in the first instance by the lawyer exercising sound professional judgment in assessing the needs of the client.
Given the harsh outcome in the event of the failure of the process, the opinion concludes that such limited representation 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 that the process will fail.” Where such circumstances are apparent at the outset, it is the duty of the lawyer either to decline the representation completely or represent the client in the traditional manner without the requirement of withdrawal.
The second ethical element addresses the concept of “informed consent.” As to this issue, the New Jersey opinion concludes that the client is unlikely to be aware of either the benefits or risks of the collaborative law process. Even if the lawyer concludes that the collaborative law process would be reasonable in a particular case, RPC 1.2(c) requires the lawyer to make certain that the client is fully aware of both the limitation imposed on the representation, as well as the full range of litigation or other alternatives and, only then, the client consents to the limited representation.
Collaborative Law in Divorce: Limitation on the Scope of Representation
The New Jersey opinion then candidly provides insight into the committee’s view of the practicality of the two required steps of full disclosure and informed consent. It quotes from Larry Spain, Collaborative Law: A Critical Reflection on Whether a Collaborative Orientation can be Ethically Incorporated into the Practice of Law, 56 Baylor L.Rev. 141 (2004) wherein the author states, “The danger is that a lawyer committed to the collaborative law process may lack the capacity, even unconsciously, to provide a client with a fair representation of the risks and benefits of utilizing such a process.”
The decision then adds that it is easy to imagine that a lawyer who practices collaborative law would be naturally inclined to describe the risks and benefits in a way that promotes collaborative law, even if the client’s interest would be better served by traditional methods.
Colorado aside, collaborative law may not be per se unethical. Rarely, however, does one see a case where the required good-faith assessment would lead an attorney in good conscious to abandon, or in many cases, demean traditional methods of representation at the outset of the representation. Further, it appears that that oftentimes, the benefits, but not the risks, associated with collaborative law are provided to the unsuspecting potential client by the attorney who proudly claims to limit her practice to Collaborative Law.
Marshall J. Wolf’s practice includes all areas of representation of clients in matrimonial disputes as well as determination of parentage, child custody, child support and parenting time involving unmarried couples. Additionally, Mr. Wolf negotiates and prepares prenuptial agreements and provides tax advice related to divorce. His clients range from stay-at-home parents to men and women in business, professions, entertainment and athletics. Mr. Wolf practices in the Courts of Cuyahoga, Lake, Geauga, Trumbull, Mahoning, Summit, Lorain and Medina Counties of Ohio, as well as the Courts of Appeals and Supreme Court of Ohio. www.wolfakers.com