Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law

Originally published at Ohio State Journal on Dispute Resolution, Vol. 25, p. 347, 2010 – republished with permission

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions.

In CL, the lawyers and clients sign a “participation agreement” promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the “disqualification agreement” signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing the clients if the parties engage in contested litigation. CL is designed to encourage parties to stay in the process which can be good, though sometimes parties feel stuck there, having invested thousands of dollars and being at risk of losing their lawyer if the process terminates.

Ethical rules require lawyers to inform participants about the risks of the process and screen cases for appropriateness under Rules 1.2 and 1.7 of the Model Rules of Professional Conduct. Empirical studies raise concerns about CL lawyers’ compliance with these duties. This article is intended to help prepare CL lawyers and practice groups so that they can better educate potential clients and comply with their obligations to screen cases and help clients make informed decisions about use of CL. It is also intended to help policymakers in promulgating and applying relevant rules. Bar association ethics committees may find this analysis useful in writing ethics opinions and adjudicating possible complaints against CL lawyers. Similarly, courts may find this useful in adjudicating possible malpractice complaints.

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• Lawyers Duty to Screen for Appropriateness and Obtain Informed Consent

                       

Forrest (Woody) Mosten

Forrest (Woody) Mosten Forrest (Woody) Mosten has been in private practice as a mediator since 1979 and currently is practicing mediation and collaborative law 100% online serving clients throughout the world. Woody is a founding partner of the Mosten-Guthrie Online Training Academy for Mediators and Collaborative Professionals. He is Adjunct Professor… MORE >

                       

John Lande

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California.… MORE >