8 ARIZONA ATTORNEY MAY 2017 www.azbar.org/AZAttorney
by David D. Dodge
David D. Dodge provides consultation
to lawyers on legal ethics, professional
responsibility and standard of care
issues. He is a former Chair of the
Disciplinary Commission of the Arizona
Supreme Court, and he practices at
David D. Dodge, PLC in Phoenix.
and the Rules
EYE ON ETHICS
Legal Ethics and Collaborative Law Practice
A collaborative proceeding where the client simply wants to explore whether a settlement can be reached and specifically wants
to avoid having to go to court falls within
the Comments’ description. And the agreement of the lawyers involved to withdraw if
the collaboration fails would not be considered an agreement that impairs their ability
to represent the clients but would instead be
considered to be consistent with the clients’
limited goals for the representation.
The authorities that view collaborative
proceedings as limited-scope representations
place a great deal of emphasis on the importance of the informed consent given by the
client and the information about the process
conveyed by the lawyer. Thus, the ethical
rules concerning competence (ER 1. 1), diligence (ER1.3), and communication (ER
1. 4) are of critical importance not only in
helping the client determine if the collaborative process is appropriate for the client’s
objectives, but in assisting the client through
to the conclusion of the representation.
Collaborative law describes a process in which parties
and their lawyers contractually commit to work cooperatively to reach a
settlement of the dispute at hand. The intent is to create a problem-solv-ing atmosphere instead of the typical contentious tone found in most situations where lawyers are hired to get involved in their clients’ disagreements. Somewhat similar to the mediation process, but with some very
real differences, collaborative participants and their lawyers identify and
focus on the interests of both parties and make sure everyone involved
gets sufficient information so the clients can make an informed decision
concerning the options presented. A written resolution of all the issues is
then drafted and submitted to the tribunal as a final decree or judgment.
Although collaborative law practice has been used mainly in the family law area, it also has been applied in employment, probate, construction and real property disputes. It is also considered beneficial where the
parties plan to have a continuing relationship after the current conflict
is resolved. 1
Ethical concerns for lawyers arise in several aspects of the collaborative process, but mainly in the very mechanics by which the process
is formalized initially. The collaborative contract, often referred to as a
“four-way” agreement, requires the parties and their lawyers to agree to
negotiate a settlement without court intervention, engage in honest and
open information sharing, and create solutions that satisfy the needs of all
the clients. The four-way agreement (and here’s the kicker) requires the
lawyers to withdraw from the representation if the collaborative process
breaks down and to not participate in any subsequent court proceedings.
This is ostensibly intended to ensure the commitment of the lawyers
to the collaborative process. But it has caused some ethical concerns.
ER 1. 7 (Conflicts of Interest: Current Clients) 2 provides, at subsection
(a)( 2), that a lawyer shall not represent a client if there is a significant risk
that the representation will be materially limited by the lawyer’s responsibilities to “a third person.” The four-way agreement arguably commits
the lawyers involved to take actions (withdraw from and terminate the
representation) that commit themselves contractually to the other (third)
parties and thereby impair their ability to effectively represent their clients.
One ethics opinion has so concluded, 3 stating that the practice of collaborative law violates Colorado’s version of ER 1. 7 insofar as a lawyer
participating in the process enters into a contractual obligation to
opposing counsel requiring the lawyer to withdraw in the event
that the process is unsuccessful. The weight of authority, however, is that the collaborative process is basically a limited-scope
representation4 and is ethically permissible as long as the rules
concerning limited-scope representations are followed. 5
ER 1. 2 (Scope of Representation and Allocation of Authority
Between Client and Lawyer), in subsection (c), provides that a
lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives
informed consent. “Informed consent” is a defined term6 and
requires that the client be given adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of action. Comment [ 6] to ER 1. 2
provides that a limited representation may be appropriate where
the client has limited objectives for the representation and/
or where the client agrees that the representation can exclude
specific means that otherwise might be used to accomplish the
1. See a very good description of the process, how
it works, where it works and it benefits at the
International Academy of Collaborative Professionals website, collaborativepractice.com/
2. Rule 42, ARIZ.R.S.CT.
3. Colorado Ethics Op. 115 (February 24, 2007).
4. We looked at this topic in Limited Representation and Your Engagement Letter, ARIZ. ATT’Y
(Nov. 2007) at 8; Limited Representation
Revisited, ARIZ. ATT’Y (June 2006) at 8; and
Uncovering Opportunities by Unbundling
Services, ARIZ. ATT’Y (Feb. 2003) at 10.
5. ABA Formal Op. 07-447, Ethical Considerations in Collaborative Law Practice (Aug. 9,
2007); in accord, Alaska Ethics Op. 2011-3
(May 3, 2011); Calif. (Orange County) Ethics
Op. 2011-01 (undated); Conn. Informal Op.
09-01 (Jan. 21, 2009); Ky. Ethics Op. E-425
(June 2005); Me. Ethics Op. 208 (March 6,
2014); Md. Ethics Op. 2004-23 (undated);
Mo. Formal Op. 124 (Aug. 20, 2008); N.J.
Ethics Op. 699 (Dec. 12, 2005); N.D. Ethics
Op. 12-01 (July 31, 2012); Ohio Formal Op.
2012-02 (June 20, 2012); S.C. Ethics Op.
10-01 (March 31, 2010) and Wash. Informal
Op. 2170 (2007).
6. ER 1.0(e).