I recently gave a presentation on “The Evolving Landscape of Collaborative Law Ethics” to the Collaborative Law Committee of the American Bar Association Dispute Resolution Section. It’s available here: The Evolving Landscape of Collaborative Law Ethics: Presentation to ABA Collaborative Law Committee. We all think we are ethical, professional and responsible, but the guidance provided by the Model Rules of Professional Conduct is invaluable for advising practitioners on how to be lawyers in a limited scope representation like Collaborative Law. There’s a distinction between ethics and practice guidelines. Ethics tells you how to carry yourself when you walk into the room. Practice guidelines tell you what to do. You can’t be a good lawyer without both pieces.
The practice of structured early dispute resolution is changing.
On one end of the spectrum are organizations that focus on individuals and small businesses. The International Academy of Collaborative Professionals (IACP) is no longer trying to be a big tent organization. Instead, it is focusing on all things family-related. The Global Collaborative Law Council is stepping into the breach with a focus on “civil Collaborative Law,” meaning everything that’s not divorce. Local practice groups have sprouted all over the world, including our own Massachusetts Collaborative Law Council. Meanwhile, for large businesses, organizations such as the International Institute for Conflict Prevention and Resolution have developed similar structures for resolving disputes out of court.
For practitioners across the spectrum, the American Bar Association has published several helpful books including John Lande’s Lawyering With Planned Early Negotiation and Lainey Feingold’s Structured Negotiation: A Winning Alternative to Lawsuits, and in addition to the Collaborative Law Committee has established an Early Dispute Resolution Taskforce.
Legislatively, some US jurisdictions have adopted the Uniform Collaborative Law Act or Rules, which provide a shield of legal privilege and a stamp of approval for those who follow the practice standards the Act and Rules embody.
These groups. authors and legislators are all talking about the same thing from different perspectives: resolving legal disputes out of court by providing an intentional structure for the negotiation rather than letting a structure evolve from the rules of a court-based process.
Collaborative Law Ethics and Practice Guidelines
In professional circles, there is much talk about Collaborative Law Ethics. However, as new practice guidelines are battling each other in the innately conservative marketplace of legal ideas, there is a danger that professional responsibility developments are not keeping up. Much of the formal ethical guidance is about the question of whether it is permitted to represent clients without going to court, a focus that derives from the world of small firm family lawyers while ignoring the fact that a huge number of lawyers are not litigators. This guidance is saying that early dispute resolution is OK to do, but not so much about what happens after we agree to do it. In order to advance this part of our practice, we have to look beyond that, to questions of how we carry ourselves.
IACP is in the process of updating its ethics standards to cover that next step. While the draft is not yet available for public comment, from the early version I’ve seen it is an enormous advance over what came before. However, it still leaves some questions open, which is why elsewhere on my website you can find my first stab at model ethical guidelines that transcend one particular area of practice.
Expanding Our Understanding
Some disputes belong in court. For those that don’t, let’s keep expanding our understanding of what works and how we work within these new systems. As our sense of what we are doing evolves, we will be better able to convey it to our clients. Structured dispute resolution can be another arrow in the quiver if we know how to do it professionally, responsibly and ethically.