Before You Take a Collaborative Law Case : What the Ethical Rules Say About Conflicts of Interest, Client Screening, and Informed Consent

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing the clients if the parties engage in contested litigation. CL is designed to encourage parties to stay in the process, which can be highly beneficial for the parties and their families. However, sometimes parties feel stuck there, having invested thousands of dollars and being at risk of losing their lawyer if the process terminates. Ethical rules require lawyers to inform participants about the risks of the process and screen cases for appropriateness under Rules 1.2 and 1.7 of the Model Rules of Professional Conduct. This brief article is intended to help prepare CL lawyers so that they comply with their obligations to screen cases and help clients make informed decisions about use of CL to increase lawyer competence and client satisfaction