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ABA Ethics Opinion Approves Collaborative Law

Posted Nov 7, 2007 1:12 PM CDT
By Debra Cassens Weiss

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An ABA committee has released an ethics opinion that approves collaborative law practice, a form of alternative dispute resolution in family law cases, if clients give informed consent.

Collaborative law is a litigation alternative in which the parties and their lawyers sign an agreement to work cooperatively to reach a settlement. The parties commit to avoid court intervention, to share information, and to create shared solutions. If the process breaks down, the lawyers must withdraw, according to an ABA press release.

The opinion (PDF) by the ABA Standing Committee on Ethics and Professional Responsibility says the process does not create an inherent conflict of interest. However, it cautions that clients must be advised about the potential risks and rewards and give informed consent to the procedure.

The ABA view is in accord with most ethics opinions on the subject. However, the Colorado Bar Association found that collaborative law agreements violate ethics rules by imposing on the participating lawyers responsibilities to the opposing parties, the ABA Journal reported in May.

The standing committee disagreed. “When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation,” its opinion said.

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