Annual Meeting 2011
ABA Rejects Proposed Measure for Collaborative Law Guidelines
Posted Aug 9, 2011 1:28 PM CDT
By Rachel M. Zahorsky
After much debate, the ABA House of Delegates rejected a resolution calling for the ABA to approve the Uniform Collaborative Law Rules/Act.
Resolution 110B (PDF), submitted by the National Conference of Commissioners on Uniform State Laws, was turned back Monday by a vote of 298 to 154.
In its report to the House, the conference said of the proposed guidelines that “a comprehensive statutory framework is necessary in order to guarantee the benefits of the collaborative process and bring uniformity to the essential features of that process.”
Under the resolution, the ABA would "approve" the Uniform Collaborative Rules Law/Act "as appropriate legislation or rules for those states desiring to adopt the specific substantive law suggested therein." As drafted by the conference, the guidelines could be adopted by states as either rules or statute. States could either limit application of the standards to family law matters only or to apply them more generally, under the proposal. The conference report notes that four states have enacted collaborative law statutes: California, North Carolina, Texas and Utah.
Under collaborative law, lawyers and their clients may voluntarily agree to participate in a process similar to mediation. Generally, collaborative law rules provide that if settlement cannot be reached, the lawyers may agree to withdraw from the case so that the client can hire new counsel.
“This is a measure that will help achieve justice in an area where great need exists,” said Robert A. Stein, a former ABA executive director who is president of the national conference. He emphasized that lawyers in each state considering adoption would work to assure that regulations are appropriate and meet ethics guidelines.
Several speakers, however, opposed the ABA’s adoption of the collaborative law guidelines, primarily on grounds that the conference’s proposal would open the door to regulation of lawyers by state legislatures.
“An essential tenet is that the legal profession is a self-regulating profession,” said Carolyn B. Lamm, of Washington, D.C., a past president of the ABA. “Instead, she said, it calls for legislatures to pass laws controlling lawyers and how they should represent clients.”
Expressing concern about the possible of the possible precedents of such action, Lamm said, “This is the camel sticking its nose under the tent.”