May a Washington family-law lawyer enter a four-way collaborative-law agreement in which the lawyers limit their representation to negotiation and agree to withdraw if the case turns to litigation?

Plain-English summary

The inquiring lawyer asked whether a Washington family-law attorney may enter a four-way agreement with the client, the opposing party, and the opposing party's lawyer as part of "collaborative law." In that process, all participants commit to settling through negotiation without traditional litigation, after each makes full and honest disclosure; each side keeps its own lawyer, experts such as accountants and appraisers are retained as needed, and the lawyers limit their representation to achieving resolution through non-adversarial means, agreeing to withdraw if negotiation fails and adversarial litigation follows.

The committee concluded that, because the collaborative-law process limits the scope of the lawyer's representation, it is permissible under RPC 1.2(c) if the limitation is reasonable under the circumstances and the client gives informed consent. It said the limitation is reasonable if, at the outset, the lawyer in the exercise of sound professional judgment believes the client's interests are likely to be well-served by participating. The predicates of informed consent include considering the client's objectives, the potential benefits and risks of the process, and the availability of other alternatives.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee treated collaborative law as a permissible limited-scope representation rather than a categorically barred arrangement. The two conditions the committee identified are RPC 1.2(c)'s own: the limitation must be reasonable under the circumstances, and the client must give informed consent. The committee described what each requires here, namely a threshold professional judgment that the client's interests are likely to be well-served by the process, and a consent discussion covering the client's objectives, the benefits and risks of collaborative law, and the alternatives. The committee did not address what happens at the withdrawal stage beyond noting that the lawyers agree to withdraw if the matter becomes adversarial litigation.

Common questions

Q: Is collaborative law allowed under the Washington rules?

A: Yes. The committee concluded it is permissible as a limitation on the scope of representation under RPC 1.2(c), subject to reasonableness and informed consent.

Q: When is the limited scope "reasonable" under RPC 1.2(c)?

A: Per the committee, it is reasonable if at the outset the lawyer, in sound professional judgment, believes the client's interests are likely to be well-served by participating in the collaborative-law process.

Q: What does informed consent to collaborative law require?

A: The committee said it includes considering the client's objectives, the potential benefits and risks of the collaborative-law process, and the availability of other alternatives.

Background and rules framework

The opinion interpreted Washington RPC 1.2(c) (Model Rule 1.2(c), limiting the scope of a representation), which permits a lawyer to limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. The committee applied that standard to the lawyers' agreement to confine their work to non-adversarial settlement and to withdraw if litigation ensues.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / Washington RPC 1.2, 1.2(c) (scope of representation; limiting the representation)

See also

• ABA Formal Op. 07-447: collaborative law practice
• CBA Formal Op. 115: collaborative and cooperative law
• ABA Formal Op. 472: communicating with a limited-scope client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1608

Original opinion text

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

Advisory Opinion: 2170
Year Issued: 2007
RPC(s): RPC 1.2(c)
Subject: Four way agreement between attorney, client, opposing party, and opposing party`s attorney as used in the practice of collaborative law

The inquiring lawyer asks if it is proper under the Rules of Professional Conduct for a Washington family law attorney to enter into a four-way agreement with his or her client, the opposing party, and the opposing party’s lawyer? The four-way agreement is a cornerstone of a dispute resolution system described as “collaborative law,” in which all participants commit to settlement through negotiation without resort to traditional litigation, after each provides full and honest disclosure of all information to each other. Each side retains a lawyer of the party’s choosing who assists in the negotiation process. Experts, such as accountants, appraisers, and mental health professionals, are also employed as needed. The lawyers limit the scope of their representation to achieving resolution through non-adversarial processes, and agree to withdraw from the representation if negotiation is unsuccessful and there is ensuing adversarial litigation.

Since the collaborative law process in a family law setting involves a limitation on the scope of a lawyer’s representation of the client, under RPC 1.2(c) it is permissible if the limitation is reasonable under the circumstances and if the client gives informed consent. The limitation is reasonable if, at the outset, the lawyer in the exercise of sound professional judgment believes the client’s interests are likely to be well-served by participation in the collaborative law process. The predicates of the client’s informed consent include a consideration of the objectives of the client, the potential benefits and risks of the collaborative law process, and the availability of other alternatives.