When collaborative law makes sense

Is collaborative law ready for primetime, moving beyond resolving domestic relations disputes to settling contract disagreements, resolving tort claims or sorting out competing intellectual property rights?

Although collaborative law is gaining popularity in certain kinds of domestic relations cases, it is not for everyone, said Theodore J. Schneyer of the University of Arizona College of Law, speaking at the 34th ABA National Conference on Professional Responsibility in Boston last month. Collaboration assumes a level of trust among those involved with the dispute, a quality that may not arise from one-time business dealings or personal injury cases. Since contingent fees are not available for collaborations, the process is less accessible for plaintiffs.

Pauline Tesler, a certified family law specialist in California, noted that the restriction against collaborating lawyers resorting to court when collaboration fails is a disincentive to business lawyers, who would resist sending long-time clients to other law firms for litigation services.

Collaboration may be most amenable in areas where there is a need for ongoing relationships, like dissolving marriages that produced children, said Paula Noe of Cambridge, a past president of the Massachusetts Collaborative Law Council. Noe suggested that discovery is often more fruitful in collaborations than in litigation, since collaboration requires full, prompt, honest and open disclosure of all relevant information, and vigorous good faith negotiation with full participation of all parties in an open forum.

Collaboration is a new role for lawyers, and being engineered as we speak, said Schneyer. In Colorado ethics authorities have said collaboration agreements improperly limit the ability of lawyers to represent their clients, but an ethics opinion by the ABA’s Standing Committee on Ethics and Professional Responsibility found the limited scope of representation acceptable if it is reasonable for the client at hand and the client gives informed consent. The International Academy of Collaborative Professionals has issued Ethical Standards for Collaborative Practitioners.

Noe pointed out that during intake and screening of prospective collaboration clients it still is important to advise the potential client about other options to address the problem, including mediation and litigation, and explain how they work and what each may produce for them.

The panelists agreed that even in collaboration, the attorney-client relationship extends only between each client and his or her own lawyer, and the lawyer’s obligation remains to achieve whatever is the best result for the client. But with collaboration, getting to that result may involve different tactics.

Collaborative law is “probably the most challenging work I have ever done,” said Noe, adding that “all of the stuff gets put on the table in front of you and everyone is sitting around the table. Skilled lawyers and negotiators rise to the occasion, and are able to maintain dignity and respect,” she said.

Tesler noted there are 10,000 to 15,000 lawyers practicing collaboration law internationally, and she is not aware there has ever been a malpractice filing against any of them. As experience with collaboration grows, and more lawyers are engaged in it, the cases to which it is applied are becoming more complex. More than 90 percent of the cases that enter collaboration are resolved without reverting to court, she said.

The National Conference on Professional Responsibility was sponsored by the ABA Center for Professional Responsibility.

Back to top

Back to home