Is a collaborative law four-way disqualification agreement, which requires lawyers to withdraw if negotiations fail, ethically permissible?

Plain-English summary

The Committee was asked whether a collaborative law "four-way disqualification agreement," which requires counsel to withdraw and not represent the parties in subsequent litigation if negotiations fail, violates the Alaska Rules of Professional Conduct. It concludes that it does not. Rule 1.2(c) permits a lawyer to limit the scope of representation with the client's consent, so the disqualification agreement is permissible as long as the lawyer has obtained the client's separate written agreement after full disclosure of the risks and alternatives.

Collaborative law is a form of alternative dispute resolution, common in family law, in which the parties and their lawyers sign a four-way agreement committing to negotiate rather than litigate and providing that the lawyers will withdraw if negotiations fail. The opinion notes that multiple state bars have approved this disqualification provision, and it follows ABA Formal Opinion 07-447, which reasoned that participation in the collaborative process is a limited-scope representation; because the client has knowingly limited the engagement to collaborative settlement, the lawyer's agreement to withdraw is consistent with that limited goal and creates no material limitation triggering a Rule 1.7(a)(2) conflict. The opinion observes that Colorado appears to be the only jurisdiction reaching a contrary conclusion.

Agreeing with the ABA, the Committee holds the disqualification provision does not per se violate the Alaska rules. It cautions, however, that the limitation can have irrevocable future consequences (for example, an opposing lawyer alone might block a continued representation), so it is critical that clients be fully informed. Quoting the ABA opinion, the Committee describes the required disclosure of the process's rules, advantages, disadvantages, and alternatives, including that failure to settle requires the collaborative lawyer to withdraw and the parties to retain new counsel for trial. The opinion directs that this consent be obtained in a confidential lawyer-client meeting and memorialized in a separate written agreement before the four-way agreement is signed, consistent with Rule 1.5's writing requirement for fee agreements and Rule 1.2(c)(1).

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer may enter a collaborative law four-way agreement that requires withdrawal if negotiations fail, treating it as a limited-scope representation under Rule 1.2(c). The opinion conditions this on the client's separate written informed consent, obtained in a confidential lawyer-client meeting before the four-way agreement is executed, covering the process's rules, advantages, disadvantages, alternatives, and the consequence that a failed collaboration requires the lawyer to withdraw and the client to retain new counsel for litigation. The opinion notes the limitation may be irrevocable in ways the client should understand.

Common questions

Q: Is a collaborative law disqualification agreement ethical in Alaska?

A: Yes. The opinion concludes the four-way disqualification agreement does not per se violate the rules, treating it as a permissible limited-scope representation under Rule 1.2(c).

Q: Does the disqualification agreement create a conflict under Rule 1.7?

A: No, per the opinion. Following ABA Op. 07-447, it reasons that because the client limited the representation to collaborative settlement, the agreement to withdraw creates no material limitation triggering a Rule 1.7(a)(2) conflict.

Q: What does the client have to be told?

A: The opinion requires full disclosure of the process's rules, advantages, disadvantages, and alternatives, including that a failed collaboration requires the lawyer to withdraw and the client to hire new counsel for trial.

Q: How should the consent be documented?

A: The opinion says the consent should be obtained in a confidential lawyer-client meeting and memorialized in a separate written agreement executed before the four-way agreement.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 1.2(c) (limiting the scope of representation, analog of Model Rule 1.2(c)) and Rule 1.7 (conflicts of interest, Model Rule 1.7), with Rule 1.5 and Rule 1.2(c)(1) on the writing requirement. It adopts the reasoning of ABA Formal Opinion 07-447 and builds on the Committee's Opinion 93-1 permitting limited-scope representation.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.2(c), 1.2(c)(1) (limiting scope of representation)
• Alaska RPC 1.7, 1.7(a)(2) (conflicts of interest); RPC 1.5 (writing for fee agreements)

Other opinions cited:

• ABA Formal Opinion 07-447 (collaborative law)
• Alaska Ethics Opinion 93-1; Colorado Bar Op. 115 (contrary view); KY, NJ, NC, PA collaborative-law opinions

See also

• ABA Formal Op. 07-447: Collaborative Law Practice
• ME Bar Op. 208: Collaborative Law in Family Law Matters

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2011-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2011-3
ETHICAL CONSIDERATIONS IN COLLABORATIVE LAW PRACTICE
Question Presented
Does a collaborative law “four-way disqualification agreement” providing
for the mandatory disqualification of counsel in subsequent potential litigation
violate the Alaska Rules of Professional Conduct?
Conclusion
No. ARPC 1.2(c) permits a lawyer to limit the scope of his representation
with the consent of the client. So long as the collaborative law practitioner has
previously obtained the separate written agreement of the client after full
disclosure of the risks of, and alternatives to the limited representation, the
disqualification agreement is permissible.
Discussion
Collaborative law is a form of alternative dispute resolution in which
lawyers serve as both advocates and counselors during structured, prelitigation negotiations. Often used in family law, collaborative law is becoming
increasingly common.1 Neither the Alaska Rules of Professional Conduct nor
the previous opinions of this Committee have expressly addressed ethics issues
in the context of collaborative law.
In collaborative law, the parties, as well as the parties’ lawyers, may
execute written agreements, generally referred to as “four-way agreements,”
which provide that, if negotiations are unsuccessful, the lawyers will not
1

John Lande, Principles for Policymaking About Collaborative Law and Other ADR Processes,
22 OHIO ST. J. ON DISP. RESOL. 619 (2007); Elizabeth K. Strickland, Putting “Counselor”
Back in the Lawyer’s Job Description: Why More States Should Adopt Collaborative Law
Statutes, 84.N.C.L. REV. 979 (2006); Joshua Isaacs, A New Way to Avoid the Courtroom: The
Ethical Implications Surrounding Collaborative Law, 18 GEO. J. LEGAL ETHICS 833 (2005);
Scott R. Peppet, Lawyers’ Bargaining Ethics, Contract, and Collaboration: The End of the Legal
Profession and the Beginning of Professional Pluralism, 90 IOWA L. REV. 475 (2005); Gay G.
Cox & Robert J. Matlock, The Case for Collaborative Law, 11 TEX. WESLEYAN L. REV. 45
(2004); Sherri Goren Slovin, The Basics of Collaborative Family Law: A Divorce Paradigm Shift,
18 AM. J. FAM. L. 74 (2004); see also, Michelle Conlin, Good Divorce, Good Business: Why
More Husband-and-Wife Teams Keep Working Together After They Split, BUS. WK., Oct. 31,
2005, at 90; Katti Gray, Collaborative Divorce: There’s a Kinder, Simpler—And Less
Expensive—Way to Untie the Knot, NEWSDAY (Long Island), Aug. 15, 2005, at B10; Carla
Fried, Getting a Divorce? Why it Pays to Play Nice: Collaborative Divorce Offers Splitting
Spouses a Kinder, Less Expensive Way to Say “I Don’t,” MONEY, July 2005, at 48.

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further represent the parties in litigation.2 Commentators have characterized
this disqualification element of the four-way agreement as the “irreducible
minimum condition”3 or the “fundamental defining characteristic”4 of
collaborative law. The goal of the four-way agreement is to encourage open
communication, voluntary sharing of information, and a commitment to
negotiate rather than litigate, but some people have questioned the ethics of
the provision requiring the lawyers to disqualify themselves if negotiations fail.
Multiple state bar associations have considered, and approved,
collaborative law arrangements, including the four-way agreement’s
disqualification provision.5 Of these, in 2007, the American Bar Association
issued Formal Opinion 07-447 concluding that any potential conflict of
interest arising out of a collaborative law agreement under Model Rule of
Professional Conduct 1.7 was addressed by Model Rule of Professional Conduct
1.2(c) permitting a lawyer, with the client’s informed consent, to reasonably
limit the scope of representation. The ABA Opinion stated:
Responsibilities to third parties constitute conflicts with one’s
own client only if there is a significant risk that those
responsibilities will materially limit the lawyer’s representation
of the client. It has been suggested that a lawyer’s agreement to
withdraw is essentially an agreement by the lawyer to impair
her ability to represent the client. We disagree, because we view
participation in the collaborative process as a limited scope
representation.
When a client has given informed consent to a representation
limited to collaborative negotiation toward settlement, the
lawyer’s agreement to withdraw if the collaboration fails is not
an agreement that impairs her ability to represent the client,
but rather is consistent with the client’s limited goals for the
representation. A client’s agreement to a limited scope
representation does not exempt the lawyer from the duties of
competence and diligence, notwithstanding that the contours of
2

Scott R. Peppet, The Ethics of Collaborative Law, 2008 J.DISP. RESOL. 131, 132-33 (2008)

3

John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer
Disqualification and Process Control in a New Model of Lawyering, 64 Ohio St. L.J. 1315,
1324 (2003).

4

Uniform Collaborative Law Act, Nat’l Conf. of Commissioners on Unfair State Laws, at p. 54
(2009).

5

See e.g., Ky. Bar Ass’n Ethics Comm., Op. E-425, 3 (2005); N.J. S.C. Advisory Comm. on
Prof’l Ethics, Op. 699, 14 N.J.L. 2474, 182 N.J.L.J. 1055 (2005); N.C. St. Bar, Formal Op. 1
(2002); Pa. Bar Ass’n Comm. Leg. Ethics & Prof’l Resp., Informal Op. 2004-24 (2004)

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the requisite competence and diligence are limited in
accordance with the overall scope of the representation. Thus,
there is no basis to conclude that the lawyer’s representation of
the client will be materially limited by the lawyer’s obligation to
withdraw if settlement cannot be accomplished. In the absence
of a significant risk of such a material limitation, no conflict
arises between the lawyer and her client under Rule 1.7(a)(2).
Stated differently, there is no foreclosing of alternatives, i.e.,
consideration and pursuit of litigation, otherwise available to
the client because the client has specifically limited the scope of
the lawyer’s representation to the collaborative negotiations of a
settlement.6
Colorado appears to be the only jurisdiction to reach a conclusion
different from the ABA Opinion.7
Having considered both of the foregoing points of view on this question,
this Committee agrees with the ABA Formal Opinion 07-447 that the
disqualification provision of a collaborative law four-way agreement does not
per se violate Alaska’s Rules of Professional Conduct. This is consistent with
the previous recognition that a lawyer may limit the scope of representation,
provided the client is fully advised and agrees.8 Once the lawyer has fully
advised the client of the limits of representation, and the client has agreed, the
lawyer’s being bound contractually to third parties to honor the agreed-on
limits is ethically permissible.
The Committee is cognizant, however, that the limitation on
representation contained in the four-way agreement has potential future
consequences. Not only do lawyer and client agree to a particular
limitation on representation, this agreement may be irrevocable. For
example, the four-way agreement might provide that, even if both clients
and one lawyer agreed to a continued representation, the opposing
lawyer, standing alone, has the right to block the representation.
Because of possibilities like this, we believe it is critical that clients
consenting to this limited representation be fully informed of the
consequences.
6

Id. at 4.

7 According to the Colorado Bar Association Opinion, no lawyer could reasonably

believe that representation of a client would not be adversely affected by an agreement
exposing the lawyer to a direct lawsuit by the opposing party (or even the opposing
party’s lawyer) if the agreement was breached.
Alaska Bar Ass’n Ethics Op. 93-1 (1991) (permitting lawyer to limit the scope of his or her
representation of pro se clients to the preparation of legal pleadings to be filed by the client).
8

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The ABA Opinion described the disclosure and consent process as
follows:
[O]btaining the client’s informed consent requires that the
lawyer communicate adequate information and explanation
about the material risks of and reasonably available
alternatives to the limited representation. The lawyer must
provide adequate information about the rules or contractual
terms governing the collaborative process, its advantages
and disadvantages, and the alternatives. The lawyer also
must assure that the client understands that, if the
collaborative law procedure does not result in settlement of
the dispute and litigation is the only recourse, the
collaborative lawyer must withdraw and the parties must
retain new lawyers to prepare the matter for trial.9
This process should take place in a meeting between the client and
lawyer with the limitation of representation memorialized in a separate
written agreement before the four-way agreement, itself, is executed.10
As one commentator noted:
If that conversation occurs in a four-way meeting with the
lawyer and client from the other side, it is unlikely that a
client will have the freedom to discuss the issue fully.
That discussion would not be confidential (because of the
presence of the other side), nor would the client likely feel
able to raise concerns about the process with her lawyer.
If the client is concerned that her divorcing husband will
not fully disclose information, for example, she may not
express that reservation as freely with the husband
sitting across from her.
[T]hus…it [is] a very bad idea for lawyers to rely on their
four-way documents and discussions to effect their
collaborative law limited retention agreements. Doing so
creates unnecessary ethical risk for little gain.11
In conclusion, although a collaborative law disqualification
agreement does not, per se, violate Alaska’s Rules of Professional
9

ABA Formal Op. 07-447, supra n.7, at p. 3.

10

The requirement of a separate writing is consistent with ARPC 1.5 which requires a writing
for all fee agreements, and ARPC 1.2(c)(1) which requires a writing for limitations on the
scope of representation “[i]f a written fee agreement is required by Rule 1.5.”

11

Peppet, supra n.2, at p. 158.

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Conduct, the agreement should only be entered after separate
discussions between the lawyer and client regarding the limited
representation reduced to a separate written agreement.12
In memory of our colleague Keith Allen Sanders.
Approved by the Alaska Bar Association Ethics Committee on April
7, 2011.
Adopted by the Board of Governors on May 3, 2011.

G:\Ds\COMM\ETHICS\OPINIONS\2011-3.doc

12

Collaborative law arrangements can raise other ethical issues for the participants not
addressed in this opinion, including confidentiality concerns and concerns involving
procedures for termination and withdrawal. See e.g. Colorado Bar Ass’n Eth. Comm.,
Formal Op. 115 at 2-3.

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