Collaborative Law Ethics

Model Collaborative Law Ethical Guidelines

To my colleagues and friends in the collaborative law and early dispute resolution world,

Professional ethics tell you how to behave as you walk into the room. They do not tell you the details of how to practice. As collaborative law and related processes continue to develop, the sources of ethical guidance have become more varied and complex. They can be hard to follow. To address this concern, over the past few years, with the support and input of many colleagues, I have developed Model Ethical Guidelines for Attorneys in Collaborative Law Matters. I am posting an excerpt from a much longer annotated version.  This effort is not intended to detract from the excellent work in the area of collaborative family law being done by the IACP Standards Committee but is aimed at a broader scope of practice that includes both family law and what much of the country calls civil collaborative law.

The Model Guidelines synthesize concepts from attorney professional responsibility rules and many state bar interpretations, existing written ethical standards for collaborative practice, the collective experience of practitioners in both family and non-family contexts, the writings of academics, group dynamics theory and behavioral economics. They take the view that ethical standards are distinct from practice guidelines, which vary from region to region and practice area to practice area. Since our goal as attorneys to serve the client rather than to serve a particular process, the Model Guidelines take no position as to which variety of practice is better or more effective.

This exposure draft is intended to spark a conversation about the next generation of collaborative law ethics. I know that not everyone will agree with everything in it, particularly those elements that appeal to what many collaborative practitioners refer to as “civil practice.” I really look forward to hearing your thoughts as this discussion about ethics continues. I am particularly interested in your thoughts about whether the next version should be expanded (i) to cover the ethics of early dispute resolution generally including collaborative law, (ii) to cover non-US jurisdictions with a more general view of collaboration or (iii) to cover non-attorney professionals. My sense is that EDR would be a small step but the others might be more appropriate down the road.

Because of local variation, each element of the Model Guidelines may not be appropriate in all jurisdictions. Formal attorney professional responsibility rules vary, even with in the US. The presence or absence of the Uniform Collaborative Law Act or Rules may change the thrust of some of the Model Guidelines. Judgments about what is appropriate can legitimately differ, particularly if the nature of any organization considering a set of ethical guidelines focuses on one or more practice areas having particular needs. As with the best practice approach to clients generally, though, I would encourage you to look at the menu of options that the Model Guidelines provide in deciding what is appropriate.

Finally, for reasons described in the exposure draft, this version of the Model Guidelines is aimed at attorneys. The interdisciplinary nature of collaborative practice often involves other professionals. I am not expert enough in the professional responsibility rules that apply to those professionals to incorporate them in this draft.

Let’s work together to improve our understanding of this complex area.


November 2017 Update

I was supposed to speak on the topic of “Beyond Informed Consent” at the Global Collaborative Law Council annual advanced training in Tampa in September – but hurricane season got in the way and the meeting was cancelled.  Instead, I am part of a panel on “Ethics: Maintaining Our Collaborative Law Compasses” at a Massachusetts Collaborative Law Council training in November.  I updated the Model Guidelines for these presentations.
For the MCLC presentation, I also prepared a handout with resources on Collaborative Law ethics, which I’ve posted here.