by Frank Broyles
Collaborative law is a rapidly developing ADR process with a good track record, especially in family law matters. Its distinguishing characteristic is the attorneys’ restricted roles. Collaborative law attorneys are engaged by the disputing parties to act only as settlement counsel. If settlement is not achieved and litigation ensues (or continues if a collaborative law ADR effort has interrupted the litigation process) the collaborative law attorneys are statutorily, ethically and contractually prohibited from continuing as litigation counsel for any party to the litigation; they must withdraw from representation if and when the collaborative law effort has failed. In re Mabray, 355 S.W.3d 16, 24 (Tex. App – Houston [1st Dist] 2010)(en banc).
The featured benefit of collaborative law is better preservation of relationships and reputations of the disputing parties, an especially worthwhile objective in the family law context. Historically, Texas has been a collaborative law leader. In 2007 it became the first state to enact a collaborative law statute. (See Tex. Fam. Code Ann. §15.101 et seq.). Currently both the Texas Bar Association and the Dallas Bar Association have active collaborative law sections.
In its infancy, collaborative law faced ethical challenges. In 2007 the Colorado Bar Association published its Formal Ethics Opinion 115, Ethical Considerations in the Collaborative and Cooperative Law Contexts, an opinion in which the CBA concluded that collaborative law agreements were per se unethical.
The American Bar Association promptly responded with its Formal Ethics Opinion 07-447 (Ethical Considerations in Collaborative Law Practice) where the ABA concluded that properly drafted collaborative law agreements did not run afoul of any ethical restrictions. The tension between these two organizations focused on what was called the “Four Way Agreement” where collaborative law attorneys were contracting with the opposing party with respect to the obligation to withdraw.
The ethics concerns raised by the Colorado Bar Association have been addressed. For example, the Florida Supreme Court recently approved comprehensive ethical and procedural rules concerning collaborative law, specifically Rule 4-1.19, Collaborative Law Process in Family Law and Family Law Procedural Rule 12.745, Collaborative Law Process. Florida’s focus is on adequate disclosure to clients and ensuring that those clients understand the potential for significant negative impact if the collaborative law effort fails and the clients have to employ new attorneys and “start over.”
A collaborative law ethics issue may now arise from duties owed to a client with respect to the clients’ objectives. Texas Disciplinary Rule 1.02(a)(1) states, subject to exceptions not relevant here, “a lawyer shall abide by a client’s decisions concerning the objectives and general methods of representation.”
Comment 1 to D.R. 1.03 includes the guidance that, “The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so.” Comment 2 contains the statement that, “The guiding principle is that the lawyer should reasonably fulfill client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.”
D.R. 102 and 103 require considered determination and monitoring of the client’s objectives. In a social media environment with its increased emphasis on reputation value, prevailing in litigation following an expensive, time consuming, and counterproductive adversarial process may thwart, not achieve, the client’s objectives.
The attorney must also recognize client objectives often change during the course of the dispute resolution process. Unless these objectives are illegal, unrealistic, or otherwise impermissible, the attorney should strive initially and periodically to define and understand those objectives and then reasonably assist the client in achieving them.
It is permissible, even advisable, for an attorney to provide guidance to the client regarding identification or redirection of objectives. That said, however, a significant ethical challenge for lawyers specializing in collaborative law, or in any other dispute resolution method, is avoiding the “Law of the Hammer.” That law, which is a recognition of our tendency to over-rely on a familiar tool, is often attributed to Abraham Maslow when, in the 1960s, he wrote, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”
In summary, collaborative law is a proven tool for resolving many types of disputes, especially where the client’s primary objectives include preservation of relationships and reputation. Appropriate use of any ADR method, including collaborative law, requires the attorney to understand, and help the client understand objectives. This is a continuing obligation throughout the dispute resolution process. Consequently, the attorney should periodically reassess client objectives and priorities and then help the client implement the best procedure for implementing those objectives.
Frank Broyles is a member of the DBA’s Legal Ethics Committee and he can be reached at firstname.lastname@example.org.