Collaborative Law

In health care and family law, there appears to be a growing collaborative law movement. As I understand it, under collaborative law principles, opposing counsel agree that they will not litigate and that there representation is limited exclusively to working collegially, collaboratively, with their adversary to settle the controversy. One would think that the field of employment law would be ripe for such an approach to many controversies. After all, non-binding mediation in a relatively short period of time took off like wildfire, and now a significant percentage of employment controversies are amicably resolved in mediation. It will be interesting to see whether the collaborative law movement begins to take hold in the employment arena.

In a controversial decision, the Colorado Bar Association’s Ethics Committee has concluded as follows:

“[The practice of Collaborative Law violates Rule 1.7(b) of Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful. The Committee further concludes that pursuant to Colo.RPC 1.7(c) the client’s consent to waive this conflict cannot be validly obtained. Because Cooperative Law lacks the disqualification agreement found in Collaborative Law, the practice of Cooperative Law is not per se unethical. However, those participating in the Cooperative Law face unique ethical issues and must be mindful of myriad potential ethical pitfalls.” Colo. Bar Ass’n, Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts, (2007) available at http://www.cobar.org/group/display.cfm?GenID=10159&EntityID=ceth.

Karen Fasler, in her article Show Me The Money!!: The Potential For Cost Savings Associated With A Parallel Program And Collaborative Law, The Health Lawyer, Vol. 20, No. 2, page 20, footnote 33 (December 2007)(available at http://www.abanet.org/abanet/common/login/securedarea.cfm?CFID=74999806&CFTOKEN=5fd073dabab1fb18-1AB951C4-9247-72D1-D31E05AD89D8F097&jsessionid=00305d34cfe32e6a3250TR&URL=%2Fhealth%2Fmo%2Fpremium%2Dhl%2Fhealthlawyer%2FV20%2F2002%2Epdf&ROLE=hl&AREATYPE=premium (members only)), had the following to say in footnote #33:

"Collaborative Law offers a distinct opportunity to facilitate resolution of issues arising in
the wake of medical injury. The process also has the potential for growth in a variety of
other legal fields. As the use of Collaborative Law has expanded, ethics committees from
various states have weighed in on several issues related to the process. For an excellent
discussion on this topic, see David A. Hoffman, A Healing Approach to the Law –
Collaborative Law Doesn’t Have to be an Oxymoron, THE CHRISTIAN SCIENCE MONITOR,
October 9, 2007 edition - an op-ed piece on the ABA Ethics opinion on Collaborative
Law (accessed on-line at http://www.csmonitor.com/2007/1009/p09s01-coop.html - last
accessed November 2007). Hoffman notes that ethics committees in five states
(Kentucky, Minnesota, North Carolina, New Jersey, and Pennsylvania) previously approved
the use of collaborative law agreements while only one state committee (Colorado) issued a
conflicting advisory opinion declaring such agreements unethical. Hoffman reports that
the ABA Ethics Committee has just released its own opinion declaring the Colorado opinion
to be simply wrong and squarely supporting the use of collaborative law as long
as clients are well informed about the process. Note: the ABA ethics opinion about
Collaborative Law is available on-line at the Colorado Collaborative Law Professionals’
website (accessed at http://cocollaborativelaw.com/Portals/0/EthicsOpinionABACL
2007.pdf - last accessed November, 2007)."