Collaborative law practice does not create inherent conflicts, says the ABA

The ABA has issued a new ethics opinion, one which gives approval to collaborative law practice, citing its "problem-solving atmosphere" and "focus on interest-based negotiation and client empowerment."

Collaborative law is an increasingly popular form of alternative dispute resolution that brings together parties and their lawyers to work collaboratively to try to reach a settlement. If a settlement is not reached, the lawyers must withdraw and may not represent the parties in litigation. Collaborative law was created in Minnesota in 1990 and has its basis in family law.

Collaborative law has now spread extensively into other fields and several state bar opinions have analyzed the practice.

Some have raised the ethical question of how much a lawyer can advocate for a client in this type of arrangement. In addition, because a lawyer needs to withdraw if the case goes to trial, the opposing side can, in essence, fire the lawyer for the other side by refusing to settle.

Under the ABA opinion, a lawyer must advise the client of the benefits and risks of the collaborative process before representing the client, and the client must give informed consent.

The ABA opinion sets out fundamentals of collaborative practice — parties commit to negotiating mutually acceptable settlements without court intervention, to engaging in open communication and information sharing, and to creating shared solutions that meet the needs of both clients.
           
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers and courts on specific issues of legal practice and client-lawyer relationships.
           
ABA members may access the opinion at http://www.abanet.org/cpr/pubs/ethicopinions.html.

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