Can a lawyer represent a client in a collaborative law process that requires the lawyer to withdraw if the case goes to litigation?

Plain-English summary

The opinion analyzes collaborative law, a form of alternative dispute resolution (most common in family law) in which the parties and their lawyers commit by contract, often called a "four-way agreement," to work cooperatively toward a negotiated settlement without court involvement. A defining feature is that if the process breaks down, both lawyers must withdraw and will not handle any ensuing litigation; the parties must then retain new counsel.

The central question is whether that withdrawal commitment is consistent with the Model Rules. The opinion concludes that collaborative practice and the four-way agreement are a permissible limited-scope representation under Rule 1.2(c), which allows a lawyer to limit the scope of a representation if the limitation is reasonable and the client gives informed consent. It reasons, citing Comment [6] to Rule 1.2, that limiting a representation to a collaborative effort to reach settlement is not per se unreasonable. Obtaining informed consent requires the lawyer to communicate adequate information about the rules and contractual terms of the process, its advantages and disadvantages, and the alternatives, and to assure the client understands that if collaboration fails and litigation becomes necessary, the lawyer must withdraw and the client must retain new counsel.

The opinion squarely rejects the view (taken by one state opinion) that the four-way agreement creates a non-waivable conflict under Rule 1.7(a)(2). It agrees the withdrawal commitment is a "responsibility to a third party," but concludes it does not create a conflict because, in a representation the client has knowingly limited to collaborative negotiation, the agreement to withdraw is consistent with the client's limited goals rather than an impairment of the lawyer's ability to represent the client. There is no foreclosing of otherwise-available alternatives, because the client has specifically chosen to limit the scope to settlement negotiation. The opinion stresses that a limited-scope representation does not relieve the lawyer of the duties of competence and diligence, though their contours are shaped by the limited scope.

In practice

Under this opinion, a lawyer may represent a client in a collaborative law process if the lawyer first explains the process, its risks and benefits, and the consequence that the lawyer must withdraw if collaboration fails, and the client gives informed consent. The opinion concludes the representation is a limited-scope engagement under Rule 1.2(c) and that the mandatory-withdrawal term is not a non-consentable conflict under Rule 1.7, while the lawyer remains fully bound by the duties of competence, diligence, and communication.

Common questions

Q: Is collaborative law allowed under the Model Rules?

A: Yes. The opinion concludes collaborative law practice is not inherently inconsistent with the Model Rules and is a permissible limited-scope representation under Rule 1.2(c) with the client's informed consent.

Q: Does the agreement to withdraw if collaboration fails create a disqualifying conflict?

A: No, in the Committee's view. The opinion concludes the withdrawal commitment is a responsibility to a third party but does not create a Rule 1.7(a)(2) conflict, because it is consistent with the client's chosen limited scope rather than a material limitation on the representation.

Q: What must I tell the client before they sign on?

A: The benefits, risks, and the withdrawal consequence. The opinion concludes informed consent requires explaining the process's rules and terms, its advantages and disadvantages, the alternatives, and that if collaboration fails the lawyer must withdraw and the client must retain new counsel for litigation.

Background and rules framework

The opinion interprets Model Rule 1.2 (scope of representation, including 1.2(c) and Comment [6]), Rule 1.7 (concurrent conflicts, including 1.7(a)(2) and Comments [1], [8], [15]), and Rule 1.4 (communication and informed consent), and references the duties of competence (Rule 1.1) and withdrawal (Rule 1.16). It treats collaborative practice as a species of limited-scope representation and surveys state opinions, most of which reach the same conclusion.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation), including 1.2(c) and Comment [6]
• ABA Model Rule 1.7 (concurrent conflicts), including 1.7(a)(2) and Comments [1], [8], [15]
• ABA Model Rule 1.4 (communication)
• ABA Model Rules 1.1 (competence), 1.16 (withdrawal)

Cases:

• Lerner v. Laufer, 819 A.2d 471 (N.J. Super. Ct. App. Div. 2003), enforcing a carefully drafted limited-scope retainer

Other opinions cited:

• Colorado Bar Op. 115 (2007): the lone contrary view (non-consentable conflict), which the opinion rejects
• Kentucky Bar Op. E-425; New Jersey Op. 699; North Carolina 2002 FEO 1: collaborative practice permitted

See also

• ABA Formal Op. 472: Communicating With a Person Receiving Limited-Scope Services
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• ABA Formal Op. 474: Referral Fees and Conflict of Interest

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 07-447.pdf