Ezel / Ethics Opinions / COBAR
COBAR February 24, 2007

Can a Colorado lawyer sign a collaborative-law agreement promising to withdraw if the case does not settle, and how does cooperative law differ?

Short answer: The opinion concludes that practicing collaborative law violates Rule 1.7(b) where the lawyer signs a four-way agreement with the opposing party requiring withdrawal if the process fails, and that the client cannot validly consent to that conflict; cooperative law, which has no disqualification agreement, is not per se unethical but carries its own ethical pitfalls.

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This page answers the general question as of 2007. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

Opinion 115 (adopted February 24, 2007) addresses two related dispute-resolution models. In collaborative law, the parties and their lawyers sign an advance "four-way" or participation agreement, with the lawyers signing in their individual capacities, that requires the lawyers to withdraw if the process fails and the matter proceeds to litigation. Cooperative law uses many of the same features (full voluntary disclosure, joint experts, interest-based negotiation) but does not require the lawyer to sign a disqualification agreement.

The Committee concludes that collaborative law, by definition, has the lawyer agree with a third person (the opposing party) to impair the lawyer's ability to represent the client, namely to discontinue the representation if the process is unsuccessful, which implicates Rule 1.7(b). It concludes the client cannot validly consent under Rule 1.7(c), because in collaborative law the conflict is significantly likely to materialize (it does so whenever the process fails) and it materially interferes with the lawyer's independent judgment by foreclosing the litigation alternative that reasonably should at least be considered. The Committee adds that the conflict is not cured merely because another lawyer could take over if the conflict materializes, since Rule 1.7 bars the originally retained lawyer, and that the disqualification is triggered regardless of any party's good or bad faith. By contrast, cooperative law is not per se unethical, but the opinion catalogs ethical issues a cooperative-law lawyer must manage: confidentiality tensions under Rule 1.6 when an agreement requires disclosure of information the client gave in confidence; advance withdrawal agreements under Rules 1.2 and 1.16 (permissible but not where withdrawal would materially harm a client of meager means, and subject to a court's power to require continued representation); communication and counseling duties under Rules 1.4 and 2.1, including explaining that a failed process can be costlier than litigating directly; heightened caution with clients under a disability or with a history of domestic abuse; and referral-fee limits under Rules 1.5(e) and 7.2(c) for cooperative-law organizations that function as referral services.

Currency note

The Colorado Bar Association withdrew Opinion 115 on December 13, 2025, "in light of Colorado's adoption of the Uniform Collaborative Law Act, C.R.S. §§13-24-101, et seq." Treat this page as historical context only; the opinion is no longer current guidance. The opinion was originally issued in 2007 under the Colorado Rules of Professional Conduct as they stood before the amendments effective January 1, 2008, and a 2008 addendum stated that the Ethics 2000 rewording of Rule 1.7 was clarification only, leaving its conflict analysis unchanged. That analysis has now been overtaken by the statute the bar cited in withdrawing the opinion. Verify the current statute and rules before relying on anything described here.

Common questions

Q: Can a Colorado lawyer practice collaborative law with a withdrawal agreement?

A: No, under this opinion. The Committee concludes that signing a four-way agreement requiring the lawyer to withdraw if the process fails creates a conflict under Rule 1.7(b) to which the client cannot validly consent.

Q: Why can't the client just consent to the collaborative-law conflict?

A: The opinion concludes the conflict is too likely to materialize and too central: it arises whenever the process fails and forecloses the lawyer from considering or pursuing litigation, so under Rule 1.7(c) a disinterested lawyer would conclude the client should not agree.

Q: Is cooperative law allowed in Colorado?

A: Yes, not per se unethical, under this opinion. The Committee concludes that because cooperative law has no disqualification agreement, a lawyer may participate so long as the lawyer complies with all the Rules, while managing the confidentiality, withdrawal, counseling, and referral-fee issues the opinion identifies.

Q: Can a lawyer join a for-profit collaborative-law referral organization?

A: Not if a fee is required. The opinion concludes, applying Rules 1.5(e) and 7.2(c), that a lawyer may not pay to belong to a for-profit organization that functions as a referral service, though a lawyer may participate in a genuine not-for-profit referral service that charges only the "usual charges."

Background and rules framework

The opinion interprets Colo. RPC 1.7 (conflicts of interest, including the 1.7(c) limit on consent), and discusses Rules 1.2 (scope), 1.4 (communication), 1.5 (fees), 1.6 (confidentiality), 1.16 (withdrawal), 2.1 (advisor), and 7.2 (referral fees). The corresponding Model Rules are 1.7, 1.16, and 7.2, among others. The Committee relied on its own Opinions 101 (unbundled legal services) and 106 (referral fees and networking organizations).

Citations and references

Rules of Professional Conduct:

  • Colo. RPC 1.7(b), (c) / Model Rule 1.7 (conflicts of interest; nonconsentable conflicts)
  • Colo. RPC 1.16 / Model Rule 1.16 (declining or terminating representation)
  • Colo. RPC 1.5(e), 7.2(c) / Model Rules 1.5, 7.2 (referral fees; value for recommending services)

Cases:

  • Jones v. Feiger, Collison and Killmer, 903 P.2d 27 (Colo. App. 1994), rev'd on other grounds, 926 P.2d 1244 (Colo. 1996) (advance authorization of withdrawal and public policy)
  • People v. Zimmermann, 938 P.2d 131 (Colo. 1997) (verifying a referral service's not-for-profit status)

Other opinions cited:

  • CBA Formal Opinion 101 (1998) (unbundled legal services)
  • CBA Formal Opinion 106 (1999) (referral fees and networking organizations)
  • New Jersey ACPE Opinion 699 (2005) and Kentucky Bar Op. E-425 (2005) (collaborative law, reaching a different result)

See also

Source

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