Collaborative Lawyers hit ethics roadblock in Colorado

The most recent ABA e-report contains an article on the advisory non-binding decision of the Colorado Bar's ethics committee that an important element of collaborative lawyering is per se unethical. In "collaborative lawyering," the lawyers and parties commit to using cooperative instead of adversarial means of resolving their dispute. Confined mostly still to divorce and family disputes, collaborative lawyering takes advantage of the possible cost of additional lawyers to motivate settlement. The lawyers and the parties agree that the lawyers will withdraw if a party decides to litigate. This is spelled out at the onset of the process in a contract known as the “four-way agreement.” However, the ethics committee said the four-way agreement creates an insurmountable conflict of interest among lawyers and clients. The agreement violates Colorado's Professional Rule of Conduct 1.7(b), barring a lawyer from representing a client if the representation is “materially limited by the lawyer’s responsibilities to ... a third person.” Ethics Opinion 115, Ethical Considerations in the Collaborative and Coopera­tive Law Contexts (Feb. 24). Nor can the client consent to the conflict because the conflict impairs the lawyer’s independent judgment about the need for litigation. In contrast, footnote 11 of the opinion opins that a two-way agreement between the parties is ok because the lawyers are not entering into an agreement with each other and the opposing parties; however, such agreements would not commit the lawyers to withdrawal and thereby arguably gut the process.

Although other states have raised eyebrows at the four-way agreement, only Colorado has gone so far as to determine it unethical. It will be interesting to see if this raises any eyebrows in Georgia which has a small but thriving collaborative lawyering practice. Moreover, the Na­tional Conference of Com­mis­sioners on Uniform State Laws has formed a drafting committee for collaborative law which will tackle this problem in drafting model statutory language.