Recent ABA Ethics Opinions

By Peter H. Geraghty
Director, ETHICSearch

In August and October of 2007 the ABA Standing Committee on Ethics and Professional Responsibility issued two new Formal Ethics Opinions, 07-447 Ethical Considerations in Collaborative Law Practice and 07-448 Appointed Counsel’s Relationship to a Person Who Declines to be Represented.

Opinion 07-447
Ethical Considerations in Collaborative Law Practice
Opinion 07-447 begins with a description of collaborative law:

…Collaborative law is a type of alternative dispute resolution in which the parties and their lawyers commit to work cooperatively to reach a settlement. It had its roots in, and shares many attributes of, the mediation process. Participants focus on the interests of both clients, gather sufficient information to insure that decisions are made with full knowledge, develop a full range of options, and then choose options that best meet the needs of the parties. The parties structure a mutually acceptable written resolution of all issues without court involvement. The product of the process is then submitted to the court as a final decree. The structure creates a problem-solving atmosphere with a focus on interest-based negotiation and client empowerment.

Collaborative law, the opinion stated further, typically involves a “four-way agreement” in which the parties commit to (1) negotiating a mutually agreeable settlement without court intervention, (2) open communication and information sharing and (3) the creation of solutions that meet the needs of both parties. Finally, the agreement includes the requirement that if the negotiations fail, the lawyers involve will withdraw from the representation and will not handle any subsequent court proceedings.

Permissible form of limited scope representation

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The Committee stated that collaborative law practice is a form of permissible limited scope representation under Model Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer. Subpart (c) of Rule 1.2 states:

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Paragraph 6 of the Comment to Rule 1.2 states:

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives.

Lawyer Must Obtain Informed Consent

The Committee also provided guidance with regard to the types of information that must be communicated to the client when obtaining informed consent to the limited scope of representation under Rule 1.2(c). First, the lawyer must inform the client about the rules or contractual terms governing the process and the advantages, disadvantages and alternatives. Second, the lawyer must make clear to the client that if the collaborative process fails, the lawyer must withdraw and the client will have to retain a new lawyer.

Not an Inherent Conflict under Rule 1.7

The Committee acknowledged that the part of the “four-way agreement” that requires both lawyers to withdraw in the event that the collaboration fails does create a responsibility to a third person under Rule 1.7(a)(2).

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

…(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

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However, since in the Committee’s view the lawyer’s participation in the collaborative law negotiation is a permissible form of limited scope representation, there is no basis to conclude that the lawyer’s participation would materially limit the lawyer’s representation of the client under the Rule:

When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation. A client’s agreement to a limited scope representation does not exempt the lawyer from the duties of competence and diligence, notwithstanding that the contours of the requisite competence and diligence are limited in accordance with the overall scope of the representation. Thus, there is no basis to conclude that the lawyer’s representation of the client will be materially limited by the lawyer’s obligation to withdraw if settlement cannot be accomplished. In the absence of a significant risk of such a material limitation, no conflict arises between the lawyer and her client under Rule 1.7(a)(2).

The Committee stated further that even though collaborative law practice is by nature limited in scope, a lawyer is still bound by the rules of professional conduct including Rules 1.1 Competence and 1.3 Diligence.

The Committee also noted that with one exception ( Colorado Opinion 115 (2007)), state bar opinions that have been issued on this topic state that collaborative law practice is not inconsistent with the Model Rules. In footnote 7 of the Opinion, the Committee listed the following state bar ethics opinions that have discussed collaborative law practice: Colorado Opinion 115 (2007), Kentucky Opinion E-425, (2005), New Jersey Opinion 699 (2005), North Carolina Formal Opinion 2002 Formal Ethics Opinion 1 (search engine for North Carolina State Bar Opinions are available here: ) (2002), and Pennsylvania Opinion 2004-4.

Opinion 07-448

Appointed Counsel’s Relationship to a Person Who Declines to be Represented

This opinion addressed the ethical obligations of a lawyer who is appointed or directed by a tribunal to represent a defendant who refuses the representation, and is particularly relevant to lawyers who are appointed to represent detainees or “enemy combatants” in Guantanamo Bay, Cuba, some of whom do not wish to be represented.

Under such circumstances, the Committee stated that the defendant is not entitled to expect that the lawyer will satisfy any of the obligations imposed by the applicable Model Rules that apply to the lawyer client relationship. The Committee, referring to Rules 1.1 Competence, 1.3 Diligence, 1.4 Communication as well as the Rules relating to conflicts of interest and confidentiality stated that they made no sense under circumstances where the defendant has not accepted the representation and concluded:

Underlying these and other Rules describing the client-lawyer relationship are the premises that a lawyer’s role in the client-lawyer relationship is to further the goals and interests of a client, and that a competent client has the ultimate authority to determine what the client’s goals and interests may be. In short, the client-lawyer relationship can only be understood under these rules as a relationship in which a lawyer and client agree that the lawyer will follow the client’s instructions unless to do so would be unlawful…. The notion that the client-lawyer relationship can be created absent consent by or on behalf of a client – or acquiescence amounting to consent – is foreign to the concepts of the Rules.

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The Committee did identify two potential sources for the lawyer’s obligations: “(a) the express or implied terms under which the obligation to act is imposed and (b) the lawyer’s obligations under the Rules to those other than clients”. Here, the Committee cited to Rules 7.1 Communications Concerning A Lawyer’s Services and 8.4 (c) and (d) Misconduct prohibiting conduct that is dishonest or prejudicial to the administration of justice as examples of such rules.

The Opinion distinguished this from other situations where a client-lawyer relationship is established even though someone other than the client consents to it or where the client’s acquiescence may be implied by contract or by some action or failure to act. For example, parents or courts have the authority to appoint guardians or counsel to represent minors or other persons under a disability, and unnamed class members in a class action can be deemed to be represented by class counsel after the class has been certified.

The Committee also distinguished this situation from those under which a court orders a lawyer to continue with the representation where the client wishes to fire his lawyer, since under this particular instance, the client had agreed to the initial representation, and “clients, particularly criminal defendants are not permitted to throw the judicial system into disarray by firing their counsel when doing so would prejudice the administration of justice.”

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