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Collaborative Law Practice Does Not Create Inherent Conflicts, Says ABA
CHICAGO, Nov. 2, 2007—A recent ethics opinion issued by the American Bar Association Standing Committee on Ethics and Professional Responsibility gives approval to collaborative law practice as an alternative form of dispute resolution, citing its “problem-solving atmosphere” and “focus on interest-based negotiation and client empowerment.”
The ABA opinion sets out the core elements of collaborative practice: parties commit to negotiating mutually acceptable settlements without court intervention, to engaging in open communication and information sharing, and to creating shared solutions that meet the needs of both clients. To ensure lawyers for the parties are committed to the collaborative process, the agreement requires that the lawyers withdraw from all future representation if the process breaks down.
The practice, which originated in family law areas, does not create an inherent conflict of interest for lawyers participating in the form of alternative dispute resolution, said the committee. Rather, it recognizes an agreement between participating lawyers and their clients for limited scope representation, to seek mutually acceptable solutions to disputes between the parties.
Before representing a client in a collaborative law process, a lawyer must explain to the client the benefits and risks of the process, and the client must give informed consent, under the opinion.
The ethics opinion contrasts with one issued earlier this year by the Colorado Bar Association, but agrees with ethics opinions from several other states, including Kentucky, New Jersey, North Carolina and Pennsylvania.
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships.
ABA members may download complimentary copies of ethics opinions for a period of one year after they are released, at the Center for Professional Responsibility’s website, http://www.abanet.org/cpr/pubs/ethicopinions.html. Information about how others can obtain copies of opinions also is posted there.
With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.