Ethical Considerations for the Michigan Collaborative Lawyer
(provided by Erika L. Salerno, Esq.)
In February of 2007, the Ethics Committee of the Colorado Bar Association ("CBA") issued an advisory opinion criticizing Collaborative Practice (2) . Collaborative Practice is a form of alternative dispute resolution in which the clients and lawyers agree to work toward resolving all of the issues through facilitative negotiation, without court intervention (3). Collaborative lawyers limit the scope of their representation within their Retainer Agreements, and commit to the process by signing a Participation Agreement limiting the scope of the representation and outlining the process. The Participation Agreement is signed by the lawyers, and individual clients.
The CBA opinion states that a Colorado attorney cannot sign a Collaborative Law Participation Agreement without violating Rule 1.7 of the Colorado Rules of Professional Conduct (4). This CBA opinion has rekindled the debate regarding whether lawyers who engage in Collaborative Practice are violating state ethical rules (5). Several jurisdictions have already upheld Collaborative Practice as ethical under the ABA Model Rules of Professional Conduct (6). As of the date of this article, the Michigan State Bar has not yet issued an opinion on the matter. However, an analysis of the CBA opinion and the Michigan Rules of Professional Conduct ("MRPC") clearly demonstrate that Collaborative Practice does not violate ethical rules governing lawyers or the MRPC.
First of all, the CBA opinion ignores its own Rule 1.2, which is similar to MRPC 1.2. MRPC 1.2 states that a lawyer may "limit the objectives of the representation if the client consents after consultation." (7) Therefore, clients have the right to manage and direct the role and scope of their lawyer's work, and the resolution of their case. After all, especially in the context of family law, it is our client who actually lives with the ramifications of a particular outcome of a case once it is resolved. For some individuals and families, alternative dispute resolution, and collaborative practice in particular, provides the ability to craft an outcome and allows them to move forward, rather than getting caught up in the angst of litigation. This decision is not fundamentally different than a criminal defendant who chooses not to testify, or a corporation that chooses to arbitrate a dispute.
Secondly, the CBA opinion suggests that the signing of the Collaborative Practice Participation Agreement creates a contractual relationship with the opposing party because the Participation Agreement requires a lawyer to withdraw from the case, should either party choose to terminate the collaborative process, and pursue court intervention. The Collaborative Participation Agreement does not bind the lawyers or clients to the process. The Participation Agreement simply states each party's desire to resolve the divorce through the collaborative process, describes the collaborative process, and sets out each party's commitment to honor the collaborative process, as long as the parties remain in the collaborative process. (8) Family law lawyers routinely enter into similar agreements without the fear they have taken on the "other spouse" as their client. (9) For example, most lawyers regularly employ collaborative techniques in their practices such as informal discovery, joint appraisals, and civil and non-threatening behavior. (10) As a result, the Participation Agreement does not bind either party or either attorney to the collaborative process. (11) Each commits to the process for only so long as each wishes to continue the process. (12)
Furthermore, the CBA opinion rests upon a faulty analysis of Rule 1.7. The Colorado Rule 1.7(b), similar to the Michigan rule, states that a lawyer shall not represent a client if the representation may be materially limited by the lawyer's responsibilities to a third person, or the lawyer's own interests. (13) However, an exception arises when the lawyer believes the representation will not be adversely affected and the client consents after consultation. (14) The CBA opinion concludes that a client's consent is invalid because if the process should terminate, the lawyer must withdraw, and cannot represent the client as the case moves forward into litigation. (15) Here, the CBA opinion implies a collaborative lawyer cannot adequately help the client consider litigation alternatives in a material way. (16) This rationale is completely flawed. A Collaborative lawyer owes the same obligation to his client as any other family lawyer. (17) The Collaborative lawyer must exercise appropriate professional judgment in recommending the collaborative process, monitoring the process, and, if the process is not working, advising the client to leave the process.
In conclusion, the CBA opinion serves as a good reminder to all family law practitioners that if there is a risk that your representation of one or more clients will be materially limited by your responsibilities to a third party, the representation can continue only if each affected client gives informed consent, after full disclosure and consultation. The Collaborative lawyer must carefully draft the Collaborative Retainer Agreement that limits the scope of the representation in the collaborative context and review it with the client. In addition, the Collaborative lawyer, must fully explain the various process options available for resolving a legal matter, including mediation, and litigation, and be direct with the client about the collaborative process, the pros and cons, as well as the risks involved.
(1) Erika L. Salerno obtained her law degree from Drake University in 1996, and has practiced primarily family law throughout her career. Currently, Ms. Salerno practices with Kreis, Enderle, Callander & Hudgins, P.C., in Kalamazoo, MI, where she concentrates her practice in domestic relations matters.
(2) Opinion No. 115 (http://wwwcobar.org/group/display.cfm?Gen ID=1059&EntityID=CETH).
(3) The Collaborative Divorce Model is essentially a team approach to conflict resolution. This approach may also involve hiring other professionals such as Divorce Coaches, Child Specialists, Financial Specialists and Mediators to resolve all of the issues in the conflict.
(5) See IACP Ethics Task Force, "The Ethics of the Collaborative Participation Agreement: A Critique of Colorado's Maverick Ethics Opinion." (http://www.collaborativepractice.com/documents/IACPEthicsTaskForcearticle.pdf); Lande, John, "Lessons for Collaborative Lawyers & Other Dispute Resolution Professional from Colorado Bar Association Ethics Opinion 115." (http://www.mediate.com/articles/landeJ3.cfm).
(6) Kentucky Bar Assoc., Ethics Opinion KBAE-425, June 2005; Advisory Committee on Professional Ethics, New Jersey, Opinion 699, Dec. 12, 2005; 2002 WL 2029469 (N.C. St. Bar); and Pennsylvania Bar Assoc., Informal Opinion 2004-24.
(7) MRPC 1.2.
(8) Cross, Daniel R. & Schneider, Jolene D., "Collaborative Process, Itself, Doesn't Lead to Malpractice." Wisconsin Lawyer, Vol. 75, No. 5, May 2002.
(13) Opinion No. 115 (http://wwwcobar.org/group/display.cfm?Gen ID=1059&EntityID=CETH). See also, Colo. RPC 1.7(b); MRPC 1.7(b).
(17) Cross, Daniel R. & Schneider, Jolene D., "Collaborative Process, Itself, Doesn't Lead to Malpractice." Wisconsin Lawyer, Vol. 75, No. 5, May 2002.
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