> Collaborative Law Reaches Out

Posted on August 27, 2013


From Stefanie Quane and Rachel Felbeck:

One question that nearly always arises in a frank and open discussion of collaborative law is the relationship between collaborative law and the Rules of Professional Conduct. Often, attorneys inquire whether it will be “ethical” to be collaborative even if their client is fully consenting and making an informed decision. The reverse is an even more compelling question: Is it ethical for lawyers to be adversarial if their clients would rather they collaborate intelligently? And where does this word “zealous” come from when it is found nowhere in the RPCs?

RPC 1.2(c) allows a lawyer to “limit the objectives of the representation if the client consents after consultation.” Thus, as part of a fee service agreement, there is no ethical violation so long as it is clearly agreed upon between the attorney and client that the attorney will represent him only in a collaborative-law context. The fee agreement should clearly spell out that the client understands and agrees that he will be required to seek litigation counsel if the collaborative process does not succeed, and that the collaborative attorney will withdraw if the case goes to litigation. Further, the collaborative agreement signed by both attorneys and the parties should clearly define that the scope of representation will be limited to the parties proceeding under the collaborative process. Further, RPC 2.1 explains the lawyers’ valid role as an advisor.

An attorney in a collaborative context can help the parties look at all sides of an issue to arrive at resolution that is acceptable to both parties. This role as advisor is no different than the role an attorney assumes when he assists a client during a mediation or settlement conference. The attorney in any alternative dispute resolution method gives his client legal advice based on the law, his experience in the local judicial bar, his experience with resolution trends, and whatever other factors may bear weight to assist the client in reaching final resolution of the issue in dispute without resorting to a trial or a hearing on the merits.

Finally, many curious attorneys recognize the risk of undertaking a process that mandates “radical transparency” and full disclosure as part of the contractual agreement. There may be concern that one of the parties is using the process as an easy discovery tool and never intends to operate under the good-faith principles outlined in the agreement. RPC 3.4 mandates that attorneys shall not “destroy, alter or conceal documents with potential evidentiary value and shall not counsel or assist another person to do so.” Similarly, the participation agreement signed by the parties and their attorneys mandates full disclosure and good-faith dealings throughout the process.

In any scenario where an attorney is aware that a party is concealing assets or evidence, that attorney has an ethical obligation to work with the client to prevent that situation from occurring and to take steps to remedy it if the client has already engaged in that type of activity. If he is unable to convince the client to not breach the contract, the participation agreement normally includes a procedure with remedies for resolution. Ultimately, of course, any attorney has a right to terminate his services based upon violations of the agreement or possible violations of RPC 3.4. The attorney’s withdrawal does not necessarily violate attorney/client privilege, since no disclosure as to why the attorney is withdrawing is ever required.

The attorney’s role in a collaborative context naturally focuses more on the attorney as a counselor or advisor. The attorneys can assist the clients on analyzing each of the legal issues present, discussing the facts, and brainstorming on creative solutions that can be directly tied to resolution to meet both parties’ needs. The attorney is thus liberated from costly and often emotionally destructive litigation tactics, motion filings, detailed discovery procedures, etc., and can focus his time and energy on being able to use his skills and expertise to resolve conflicts, instead of increasing or creating conflicts.