A Proposed Model Rule for Collaborative Law

Abstract

Collaborative law is a form of alternative dispute resolution involving a nonadversarial participatory process of informal conferences by the parties and their lawyers to achieve settlement. The unique twist of collaborative law is the disqualification or withdrawal agreement requiring that the lawyers participate solely for settlement purposes and cannot represent the parties in litigation. While this practice has begun to take hold in the family law arena, its growth is hampered by questions of compatibility with rules of professional ethics. Critics, including some collaborative law practitioners, find it difficult to square the principles and practices of collaborative law with the professional rules of ethics concerning everything from zealous advocacy to confidentiality to terminating representation. While the ideals of legal ethics and the ideals of collaborative law seem on a collision course with one another, there is a way to accommodate both. We should end the current academic exercise of trying to fit collaborative law within a legal ethical framework that was not designed for it, and instead squarely address the compatibility issues with a new Model Rule of Professional Conduct. To start this process, this Article proposes a new Model Rule 2.2: The Collaborative Lawyer and proposed commentary. Whether others agree with this proposal or not, this Article frames the issues for future debate on the practice, including the ethics, of collaborative lawyering.

Keywords: loyalty, candor, disqualification

JEL Classification: K40. K41