The Evolving Landscape of Collaborative Law Ethics

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.

Changing Practice

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.

A Dozen Tips for Lawyer Success in Collaborative Practice

I recently co-authored an article with Robert Kubacki gathering together some bits of our experience with Collaborative Practice.  It was published in the June 2015 edition of Just Resolutions, a publication of the American Bar Association’s Dispute Resolution Section. Click here to read the article.

Ethical Collaborative Practice: Contributing to the Conflict of a Client

Contributing to the Conflict of a Client

[This article is directed to Collaborative lawyers and other practitioners, but may be of interest to other people as well.]

We don’t always think about ethics in our daily lives. Many lawyers remember legal ethics as one of the less interesting topics on the bar exam.

In the Collaborative process, though, ethics are important. They mean “doing the right thing” in the situation. They mean always asking ourselves, “Am I being Collaborative? Is what I am doing now Collaborative?”

The umbrella organization for Collaborative practice, the International Academy of Collaborative Professionals (IACP), has published a set of ethical guidelines for practitioners. These guidelines overlap with professional responsibility rules that apply to lawyers and other professionals in the process in a way that provides direction to the Collaborative process but, in accordance with Ethical Standard 1.1, do not supersede the general rules of the professions. One of the key guidelines is Ethical Standard 5.5, which states, “A Collaborative practitioner shall avoid contributing to the conflict of the client(s).” It sounds good: if the professionals are part of the solution rather than part of the problem, it moves the process forward. However, on second look it becomes clear that we cannot – in fact, should not – follow this Standard exactly as written.

Clients bring lawyers and neutrals into a case in order to obtain advice and information, to place their dispute within a legal and factual context that helps them make better choices about how to resolve it. If a professional avoids giving accurate advice to avoid contributing to client conflict, it violates broader professional responsibility rules and could even expose the professional to a malpractice claim. The problem is that every bit of advice the Collaborative lawyer gives – and a conversation about legal rights plays a significant role in most clients’ minds – affects the clients’ view of the dispute. Every bit of information that a neutral provides does the same, whether it is about finance, law or some other subject. Even in an interest-based negotiation, even if presented in the most non-confrontational way, the advice that lawyers and neutrals provide effectively tells the parties, “Regardless of what you may want, here are the facts. Regardless of what you personally think is fair, the norms of our society as written into the law would likely put you in a particular position if a judge decided the matter. Regardless of what you or the other party may want, here is where the facts and the law would lead you if you took them to a third party decision maker.”

Can those conclusions cause parties to advocate for their rights and thereby add to their conflict? Of course, but we should remember that client self-determination is an important element of Collaborative Practice. The parties are choosing a Collaborative process so they can make their own decisions rather than relying on a judge. At the same time they are seeking not to let conflict spiral out of control. To balance these competing goals, the Collaborative practitioner should go on to say, “But it’s up to you what to do with this information. Is it in your best interest to step back from a strict reading of your rights in order to get a whole package that works better for you?”

In other words, a more realistic guideline might read, “A Collaborative practitioner should advise a client accurately of his or her opinion of the parties’ legal rights and factual matters, but should seek to do so in the context of negotiation based on the actual interests of the parties rather than advocating for a particular position, the hardening of a position or increased confrontation.”

The consensus on ethical Collaborative Practice is constantly evolving. In fact, the IACP is in the process of revising its ethical standards now. In this complex and challenging practice, it is always worthwhile to consider ongoing developments in what it means to be Collaborative.

Seven Ethical Considerations for Attorney Neutrals in Collaborative Matters

Collaborative MattersAttorneys who have substantive knowledge of a particular area of law are sometimes brought in as neutrals in Collaborative Law cases.  Parties sometimes want unbiased advice on how a court would likely interpret the facts and how parties draft settlement agreements to address the major legal concerns that this area of law raises, in order to help them reach a negotiated resolution.  Some attorneys with proper training also act as coach-facilitators in these cases.  Is this ethical?  The attorney should consider the following guidelines:

  1. Under the preamble to the Model Rules of Professional Conduct, “In addition to … representational roles, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.”  It is OK to be a neutral.
  2. An attorney “shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as … third party neutral, unless all parties … give informed consent, confirmed in writing.”  The exception is if the attorney’s firm establishes an “Ethical Wall” (formerly known as a “Chinese Wall”).
  3. An attorney who has served as a neutral may not seek employment from a party or lawyer.
  4. A lawyer who is serving as a third party neutral must inform unrepresented parties that the lawyer is not representing them.  Even though both parties have lawyers who represent them in a Collaborative case, it is still a good idea to include appropriate language in the retainer letter.
  5. Lawyers who are members of the International Academy of Collaborative Professionals (IACP), the largest industry group, are also subject to IACP ethical standards.  Under those standards, the lawyer “shall not engage in any continuing client relationship that would compromise the Collaborative practitioner’s neutrality.”
  6. Under the IACP standards, a lawyer who is hired as neutral must stick to that role.  While the advice he gives may make one client or the other unhappy, he should seek to provide it in a way that does not unduly increase the conflict between the clients (diplomacy!) and appears to be neutral, rather than advocating for one client over the other.
  7. In a family case, the IACP standards prohibit lawyers from working with either or both client(s) or with their child(ren) outside of the Collaborative process.  However, although the standards are not entirely clear, it appears that a neutral could work with both parties at the same time if permitted under legal ethics rules.   Attorneys should carefully consider the degree to which they can do so without wading into a non-waivable conflict of interest, as well as the amount of informed consent about joint representation they need to provide.

It sometimes surprises non-lawyers that attorneys have ethics!  In fact, ethics is a required class in law school, a required part of the bar exam and in many states a continuing education requirement.  As important as ethics can be in typical legal practice to resolve tensions among lawyer self-interest, client self-interest and the interests of tribunals and other parties, they are even more important in Collaborative matters.  The reason is that building trust in the process and participants is such a vital part of this type of work.  In other words, even as neutrals, attorneys should be mindful that they are modeling ethical, trustworthy behavior, which can only enhance the process and strengthen the Collaborative team.

Conflict Resolution for Small and Family Business: Collaborative Law and Supplier-Customer Disputes

Collaborative LawDisagreements between companies and their suppliers, distributors or customers can often disturb a mutually beneficial arrangement.  Neither party wants a prolonged, expensive legal dispute.  Neither party wants the public to know about the dispute or the terms of the underlying contract.  One alternative for small or family businesses looking for a fast, cost-contained, efficient solution is to use the relatively new discipline of Collaborative Law.

  1. What is Collaborative Law?  Collaborative Law was originally designed as a method for reducing the hostility and expense of divorce.  Practitioners came up with a set of effective steps to encourage squabbling spouses to engage inso-called interest-based negotiation (negotiation based core interests rather than on staking out extreme positions and haggling to reach a middle ground) and cooperative problem-solving.  Some of these techniques translate very well to civil disputes in which parties want to maintain an ongoing relationship yet resolve their disagreement efficiently.
  2. How Does It Work?  It starts with the parties and their attorneys agreeing in writing to seek a resolution of their dispute outside the court system.  They then set the parameters of their discussions, such as the number of initial meetings, the inadmissibility of any of the settlement discussions in court and a joint commitment to exchange relevant information freely rather than playing discovery games.
  3. How is the Lawyer’s Role Different? In litigation or most commercial mediation, the lawyer takes the lead adversarial role as the client’s primary persuasive mouthpiece.  He also utilizes the tools of the system to weaken the opponent’s side and strengthen that of his client.  In the Collaborative process, lawyers advocate for clients by supporting them in a problem-solving mode.  Since this can be a leap for some lawyers, special Collaborative Law training is the best preparation.
  4. Lawyer Disqualification.  To keep the focus on the conference room instead of the courtroom, in a pure Collaborative case the lawyers agree to withdraw in favor of litigation counsel if the case does not settle.  Since this is not always practical, variations are evolving, including some that protect in-house counsel.
  5. The Collaborative Team The negotiating group consists of more than just parties and their lawyers.  In most cases, a specially trained neutral Collaborative coach-facilitator assists in managing the process and party communications.Partiesoften find it useful to seek any neededexpert advice jointly, ranging from industry-specific factual interpretations to accounting guidance to third party legal opinions.
  6. Conduct of Negotiations.  In a non-Collaborative case, lawyers carry much of the load in offline negotiations or, for a few brief moments, in court.  In a Collaborative case, most of the work takes place in joint meetings with agendas carefully crafted to advance the settlement negotiation process and encourage interest-based negotiation.  The parties themselves are actively involved in this creative problem-solving exercise.

If the parties are engaged in the process, they can sometimes resolve a difficult disagreement within a few meetings, which reduces the drag on internal resources, reduces the legal bills and reduces the ongoing build up of conflict between parties that may want to continue to work together.  The whole process stays private, as do the terms of the arrangement from which the dispute arises and even the fact that the parties have done business together.  Although it is not right for every case, the Collaborative approach encourages customers and suppliers to move beyond their initial stances while giving them the flexibility to design a customized settlement that might not be available in court.