Can a North Carolina lawyer take part in collaborative family law and agree in advance to withdraw before any court proceeding?

Plain-English summary

Lawyers from different firms want to form a nonprofit (the CFL Organization) to promote collaborative family law, in which each spouse is represented by a lawyer trained in the process and the lawyers commit to resolving the dispute through negotiation rather than litigation. Each spouse pays his or her own fees, and each lawyer is paid only by that lawyer's own client. The opinion answers six questions about the process.

On representing a spouse when the other spouse's lawyer belongs to the same organization, the opinion concludes a member may do so if both lawyers determine their professional judgment will not be impaired by their relationship through the organization and both clients consent after consultation (Rule 1.7(b)). On agreeing in advance to limit the representation to the collaborative process and withdraw before court, the opinion concludes a lawyer may do so because Rule 1.2(c) permits limiting the objectives of a representation with the client's consent after consultation. On a brochure naming member lawyers and describing their training, the opinion concludes it is permissible as a communication about legal services that must be truthful and not misleading (Rule 7.1).

On contacting an unrepresented opposing spouse to propose the process, the opinion concludes the lawyer may, with full disclosure of the lawyer's relationship to the organization and compliance with Rule 4.3; this is not a prohibited solicitation if the lawyer gains no financial benefit from the other spouse hiring another collaborative lawyer (Rule 7.3(a)). The lawyer may not advise the unrepresented spouse beyond advising that person to secure counsel (Rule 4.3(a)), may not refer the spouse to a specific lawyer (though the lawyer may provide a list), and may describe the process but not advise the unrepresented spouse on its benefits or risks. On competence, the opinion concludes the lawyer must use professional judgment to analyze the benefits and risks of the process for the client, including the voluntary-disclosure requirements, and advise the client accordingly (Rules 1.1 and 1.4(b)). On disclosure rules that touch sensitive facts such as adultery (which can affect alimony), the opinion concludes a lawyer may represent a client in the process if it is in the client's best interest, the client makes informed decisions, the disclosure requirements do not involve dishonesty or fraud, and all parties understand and agree to those requirements, after the lawyer examines the totality of the situation and advises the client of the benefits and risks of making or receiving the disclosures (Rule 1.4(b)).

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on informed consent to a limited-scope representation and on the conflict and communication rules. The opinion holds that a lawyer may participate in collaborative family law, may agree in advance to withdraw before court under Rule 1.2(c), and may contact an unrepresented opposing spouse with full disclosure and within the limits of Rule 4.3.

Per the opinion, when the opposing spouse's lawyer is in the same collaborative organization, both lawyers must satisfy themselves that their judgment is not impaired and obtain client consent (Rule 1.7(b)); and the lawyer must advise the client about the benefits and risks of the process, including its voluntary-disclosure requirements, before the client decides to participate.

Common questions

Q: Can a lawyer agree up front to withdraw if the collaborative process fails and the case goes to court?

A: Yes. The opinion concludes Rule 1.2(c) permits a lawyer to limit the objectives of the representation, with the client's consent after consultation, to the collaborative process and withdrawal before court proceedings.

Q: Can both spouses be represented by lawyers from the same collaborative organization?

A: Yes, with safeguards. The opinion concludes the lawyers must each determine their professional judgment will not be impaired by their relationship through the organization, and both clients must consent after consultation (Rule 1.7(b)).

Q: Can a lawyer contact the unrepresented opposing spouse to propose collaborative law?

A: Yes, with limits. The opinion concludes the lawyer must fully disclose the relationship to the organization and comply with Rule 4.3, may not advise the spouse beyond advising them to get counsel, and may not refer them to a specific lawyer (though a list is permitted).

Q: Is encouraging a client to disclose assets and income in the process a competence problem?

A: No, if done properly. The opinion concludes the lawyer must analyze and advise the client on the benefits and risks of the process, including the voluntary-disclosure requirements, so the client can make an informed decision (Rules 1.1, 1.4(b)).

Q: What about disclosure rules that reach sensitive facts like adultery?

A: The opinion concludes a lawyer may participate if it is in the client's best interest, the client makes informed decisions, the disclosure requirements do not involve dishonesty or fraud, and all parties understand and agree to them, after the lawyer advises the client of the benefits and risks.

Background and rules framework

The opinion interprets Rule 1.2(c) (limiting the scope of a representation with informed consent) and Rule 1.7(b) (conflicts and impaired judgment), corresponding to Model Rules 1.2 and 1.7; Rule 4.3 and Rule 4.3(a) (dealing with and not advising an unrepresented person) and Rule 7.3(a) (solicitation), corresponding to Model Rules 4.3 and 7.3; Rule 7.1 (truthful communications about services), corresponding to Model Rule 7.1; and Rules 1.1 and 1.4(b) (competence and informing the client), corresponding to Model Rules 1.1 and 1.4.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / NC Rule 1.2(c) (limited-scope representation)
• MR 1.7 / NC Rule 1.7(b) (conflicts; impaired judgment; consent)
• MR 4.3 / NC Rule 4.3, 4.3(a) (dealing with an unrepresented person)
• MR 7.3 / NC Rule 7.3(a) (solicitation)
• MR 7.1 / NC Rule 7.1 (truthful communications about services)
• MR 1.1 / NC Rule 1.1 (competence) and MR 1.4 / NC Rule 1.4(b) (informing the client)

See also

• ABA Formal Op. 07-447: Ethical Considerations in Collaborative Law Practice
• ABA Formal Op. 472: Communication With a Person Receiving Limited-Scope Legal Services
• NC State Bar 2022 FEO 2: Limited Representation in a Criminal Matter

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2002-formal-ethics-opinion-1/

Original opinion text

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

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Several lawyers from different law firms would like to start a non-profit organization (the "CFL Organization") to promote the use of a process called "collaborative family law" to facilitate the resolution of domestic disputes through non-adversarial negotiation. The goal of the collaborative family law process is to avoid the negative economic, social, and emotional consequences of protracted litigation by using cooperative negotiation and problem solving. In the "four-way meetings" to negotiate a settlement, each spouse is represented by a lawyer of his or her choice provided the lawyer is trained in and dedicated to the process of collaborative family law. A spouse who wants the CFL Organization to facilitate a collaborative family law process may be represented by a lawyer who is not a member of the organization provided the lawyer is committed to the process. However, it is anticipated that in the majority of cases, both the husband and the wife will be represented by lawyers who are members of the CFL Organization. Each spouse agrees to pay his or her own legal fees. A lawyer participating in the process, including a member of CFL Organization, receives all compensation for legal representation from his or her client.

May a lawyer who is a member of the CFL Organization represent a spouse in a collaborative family law process if another member of the organization represents the other spouse?

Yes, provided both lawyers determine that their professional judgment on behalf of their respective clients will not be impaired by their relationship to the other lawyer through the CFL Organization, and both clients consent to the representation after consultation. See Rule 1.7(b).

To further the goal of avoiding litigation, the lawyers must agree to limit their representation of their respective clients to representation in the collaborative family law process and to withdraw from representation prior to court proceedings. May a lawyer ask a client to agree, in advance, to this limitation on the lawyer's legal services?

Yes. Rule 1.2(c) permits a lawyer to limit the objectives of a representation if the client consents after consultation.

The CFL Organization wants to publish a brochure describing the process of collaborative family law and its differences from litigation and other methods of resolving disputes. May the brochure include the names of the lawyers who are members of the CFL Organization and provide a description of their training and their commitment to the process?

Yes. As a communication about lawyers and their legal services, the brochure must comply with the Rules of Professional Conduct including the duty to be truthful and not misleading. See Rule 7.1.

May a lawyer representing a spouse contact the other spouse, if not represented by counsel, to propose the use of the collaborative family law process and, if interested, to recommend contacting another member of the CFL Organization, or another lawyer trained in collaborative family law? May the lawyer send the opposing party a copy of the CFL Organization brochure and other information about the process?

Yes, provided there is full disclosure of the lawyer's relationship to the CFL Organization and the lawyer complies with the limitations on communications with unrepresented persons set forth in Rule 4.3. This communication is not a prohibited solicitation if the lawyer will receive no financial benefit from the CFL Organization as a result of the other spouse's employment of another CFL lawyer. See Rule 7.3(a). Nevertheless, the lawyer may not give advice to the unrepresented spouse other than the advice to secure counsel. See Rule 4.3(a). Such advice must be general: the lawyer may not refer the unrepresented spouse to a specific lawyer but may provide a list of lawyers who ascribe to the collaborative family law process. Moreover, the lawyer may describe the collaborative family law process in communications with the unrepresented spouse but the lawyer may not give the unrepresented spouse advice about the benefits or risks of the process for the unrepresented spouse.

The collaborative family law process requires both spouses to agree to disclose voluntarily all assets, income, debts, and other information necessary for both parties to make informed choices. Is it a violation of the lawyer's duty of competent representation to encourage a client to participate in the process and to disclose such information voluntarily?

In order that the client may make an informed decision about participating in the process, the lawyer must use his or her professional judgment to analyze the benefits and risks for the client in participating in the collaborative family law process, taking the disclosure requirements into consideration, and advise the client accordingly. See Rule 1.1 and Rule 1.4(b).

In a court proceeding, adultery may determine a client's right to alimony. May a lawyer represent a client in the collaborative family law process if the disclosure requirements for the process permit withholding of information about adultery despite the general policy of full disclosure? May a lawyer represent a client in the process if the disclosure requirements require the disclosure of information about adultery even if it may be detrimental to the disclosing party?

A lawyer may represent a client in the collaborative family law process if it is in the best interest of the client, the client has made informed decisions about the representation, the disclosure requirements do not involve dishonesty or fraud, and all parties understand and agree to the specific disclosure requirements. Before representing a client in the collaborative family law process, the lawyer must examine the totality of the situation and advise the client of the benefits and risks of participation in the collaborative family law process including the benefits and risks of making and receiving certain disclosures (or not receiving those disclosures). See Rule 1.4(b).