Can a Maine lawyer represent a client in a collaborative law process in a family law matter?

Plain-English summary

The Commission was asked whether lawyers may enter a "collaborative participation agreement" (a written contract among clients and their lawyers that commits the parties to resolve family disputes cooperatively, with minimal judicial involvement and without formal discovery). The opinion concludes the Maine Rules do not prohibit it, but conditions the practice on a series of caveats.

Each caveat maps to a rule. Scope: the agreement should specify the scope of representation and the goals, state whether the lawyers may continue to represent their clients in contested proceedings after the agreement ends, and not compromise the lawyers' duties to their own clients (Rule 1.2); the collaborative role should not be confused with serving as a third-party neutral under Rule 2.4. Confidentiality: the agreement should address whether the attorney-client privilege is waived and to what extent information may be shared, and clients must be told that, absent an agreement preserving the privilege or excluding the information from evidence, disclosed information may be shared and admitted, because the confidentiality rules that govern mediation (M.R. Evid. 514) do not apply (Rule 1.6). Competence: lawyers must provide competent representation and the opinion recommends familiarity with the Uniform Collaborative Law Act and resources of the International Academy of Collaborative Practitioners (Rule 1.1). Fees: the agreement should specify each client's responsibility for fees and costs (Rule 1.5).

The remaining caveats address structure and consent. A lawyer may not represent multiple parties under the agreement, and must ensure an unrepresented party understands the lawyer does not represent them; the opinion states it is not likely the parties can waive that conflict under Rule 1.7(b), and a lawyer should be very hesitant to enter such an agreement involving pro se parties (Rule 4.3). The client may revoke the lawyer's authority at any time, and because access to the courts in divorce is a fundamental due-process right (Boddie v. Connecticut), the agreement should let any client terminate the process at any time for any reason. Finally, the lawyer must fully explain the process and obtain the client's informed consent before it begins (Rule 1.4). The opinion notes it is not an exhaustive catalog and that all the Maine Rules continue to apply.

In practice

Under the Maine rules as the opinion read them in 2014, a lawyer may use collaborative law in a family matter so long as the participation agreement is drafted and the representation conducted consistent with the listed caveats. The opinion holds the agreement should define scope and the post-termination representation question (Rule 1.2), address privilege and warn the client that collaborative disclosures are not protected like mediation (Rule 1.6), reflect competent practice (Rule 1.1), specify fee responsibility (Rule 1.5), and that the lawyer may not represent multiple parties and must make an unrepresented party's status clear (Rule 4.3). It holds the agreement must let the client terminate at any time and that the lawyer must obtain informed consent before starting (Rule 1.4). The opinion states a lawyer should be very hesitant to enter a collaborative agreement involving pro se parties.

Common questions

Q: Is collaborative law allowed for Maine lawyers in divorce and family cases?

A: Yes. The opinion concludes the Maine Rules of Professional Conduct do not prohibit a lawyer from participating in or becoming a party to a collaborative participation agreement, subject to its caveats.

Q: What must the agreement say about confidentiality?

A: It should state whether and to what extent the attorney-client privilege is waived and information may be shared. The opinion holds clients must be told that, absent an agreement preserving privilege or excluding the information, disclosed information may be shared and admitted, because mediation confidentiality (M.R. Evid. 514) does not apply.

Q: Can one lawyer handle the collaborative process for both parties?

A: No. The opinion states a lawyer may not represent multiple parties under a collaborative participation agreement, and must ensure any unrepresented party understands the lawyer does not represent them (Rule 4.3).

Q: Can a client back out of the collaborative process?

A: Yes. The opinion states a client may revoke the lawyer's authority at any time, and that, given the fundamental right of access to the courts in divorce, the agreement should let any client terminate the process at any time for any reason.

Q: What does the lawyer need before starting?

A: The opinion states the lawyer must fully explain the process, including the agreement's content, benefits, risks, rights, and obligations, and obtain the client's informed consent before the process is initiated (Rule 1.4).

Background and rules framework

The opinion interprets a set of Maine Rules of Professional Conduct corresponding to the ABA Model Rules: Rule 1.2 (scope of representation), Rule 1.1 (competence), Rule 1.4 (communication and informed consent), Rule 1.5 (fees), Rule 1.6 (confidentiality), Rule 1.7 (conflicts), Rule 2.4 (lawyer as third-party neutral), and Rule 4.3 (dealing with an unrepresented person). It references the Uniform Collaborative Law Act (not adopted in Maine) as a model.

Citations and references

Rules of Professional Conduct:

• Model Rules 1.2, 1.1, 1.4, 1.5, 1.6, 1.7, 2.4, 4.3
• Maine R. Prof. Conduct 1.2, 1.1, 1.4, 1.5, 1.6, 1.7, 2.4, 4.3

Cases:

• Boddie v. Connecticut, 401 U.S. 371 (1971), access to courts in divorce as a due-process right.

Other opinions cited:

• Uniform Collaborative Law Act, § 9 (model; not adopted in Maine).
• Colorado Bar Ass'n Ethics Op. 115 (collaborative vs. cooperative law).

See also

• ABA Formal Op. 07-447: Ethics of Collaborative Law Practice
• Maine Ethics Op. 228: Limited Scope Representation

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=615925

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: March 6, 2014

The Commission has been asked to advise whether attorneys may enter into a ?collaborative participation agreement? to resolve legal disputes involving family relationships. For purposes of this opinion, the term ?collaborative participation agreement? means a written contract (a) in which the clients and their respective lawyers are parties; (b) that specifies the issues to be resolved by cooperative means; (c) that outlines a dispute-resolution process, usually multi-disciplinary, that entails minimal judicial involvement without recourse to formal discovery; and (d) that is consistent with this Opinion.

Opinion

It is the opinion of the Commission that the Maine Rules of Professional Conduct do not prohibit attorneys from participating in or becoming parties to a collaborative participation agreement, subject to the following caveats:

1. Scope of Representation

A collaborative participation agreement should clearly specify the scope of representation by the respective attorneys and the goals to be achieved. M.R. Prof. Conduct 1.2(a) and (c). The agreement should state whether the lawyers may continue to represent their respective clients during contested adjudicative proceedings after termination of the agreement.1 The agreement may not compromise the duty of the lawyers to represent the interests of their respective clients under the Maine Rules of Professional Conduct. The lawyer?s role under a collaborative law agreement should not be confused with the role of a lawyer serving as a third-party neutral under M.R. Prof. Conduct 2.4.

2. Confidentiality

The agreement should state whether or the extent to which (1) the clients waive the attorney/client privilege and the extent to which information may be revealed among the parties, their counsel, and to the court or (2) that the attorney/client privilege is not waived and the attorneys shall preserve the confidentiality of information, subject to M.R. Prof. Conduct 1.6. Clients must be made aware that, absent an agreement that preserves the privilege or an agreement in which the parties exclude from evidence information revealed during the collaborative process, all disclosed information may be shared with the opposing party and their counsel and admitted as evidence in any contested adjudicative proceeding. Each client should be clearly informed that absent legislation or court rule, rules imposing confidentiality, such as those that govern mediation under M.R. Evid. 514, are not applicable to collaborative law agreements.

3. Competence

Lawyers must furnish competent representation to their clients. M.R. Prof. Conduct 1.1. The Commission recommends that, before entering into a collaborative participation agreement, lawyers should be knowledgeable about the prefatory note and comments that accompany the Uniform Collaborative Law Act, guidelines and recommendations promulgated by the International Academy of Collaborative Practitioners (https://www.collaborativepractice.com), and similar professional resources.

4. Fees and Costs

The agreement should specify the respective client?s responsibility for payment of legal fees and costs, consistent with M.R. Prof. Conduct 1.5.

5. Unrepresented Parties

Particular care is required when a party to the agreement is not represented by counsel. A lawyer may not represent multiple parties under a collaborative participation agreement. It is a lawyer?s responsibility to ensure that an unrepresented party understands that the opposing lawyer does not represent him or her. See M. R. Prof. Conduct 4.3. Because the subject of the agreement inevitably invokes the lawyer?s duty to exercise independent judgment to consider, recommend or carry out an appropriate course of action for the client, it is not likely that the parties can waive the conflict of interest as otherwise permitted by M.R. Prof. Conduct. 1.7(b). A lawyer should be very hesitant to enter into a collaborative participation agreement involving pro se parties.

6. Termination of the Agreement

A client may revoke the authority of the attorney at any time. M.R. Prof. Conduct 1.2, Comment 3. Furthermore, the right of access to the courts in divorce proceedings is a fundamental right guaranteed under the Due Process Clause. Boddie v. Connecticut, 401 U.S. 371, 384-85 (1971). Accordingly, the agreement should contain a provision permitting any client to terminate the process at any time and for any reason.

7. Clients? Informed Consent

A lawyer must fully explain the collaborative participation process to the client, including the content of the agreement, its benefits, risks, rights and obligations, and obtain the client?s informed consent before the collaborative participation process is initiated. M.R. Prof. Conduct 1.4.

Discussion

This opinion should not be viewed as an exhaustive catalog of the ethical implications of the collaborative family law process. While the process may be intended to resolve family legal issues amicably and efficiently while reducing antagonisms inherent in the adversarial system of litigation, the Maine Rules of Professional Conduct governing the ethical obligations of lawyers remain applicable, whether or not cited and discussed above.

1A traditional collaborative participation agreement requires the attorneys to terminate representation of their clients if the process should be unsuccessful. See, e.g., Uniform Collaborative Law Act, §9. The Act has not been adopted in Maine but may serve as a useful model. The term ?cooperative law process? is often applied to a similar process that does not require mandatory withdrawal. The Ethics Committee of the Colorado Bar Association has explained the distinction in its Ethics Opinion 115. This Opinion makes no distinction between the two processes; both are governed by the same Maine Rules of Professional Conduct.