Ethical Considerations in the Collaborative and Cooperative Law Contexts

Introduction and Scope For many years, parties have turned to Alternative Dispute Resolution (ADR) methods to resolve disputes. ADR methods allow the parties to customize the process of resolving a particular dispute. One ADR method which has emerged in recent years is commonly referred to as the Collaborative Law process. The touchtone of Collaborative Law is an advance agreement, often referred to as a “Four-Way Agreement” or “Participation Agreement,” entered into by the parties and the lawyers in their individual capacities, which requires the lawyers to terminate their representations in the event the process is unsuccessful and the matter must proceed to litigation. Cooperative Law, on the other hand, is a process which incorporates many of the hallmarks of Collaborative Law discussed below but does not require the lawyer to enter into a contract with the opposing party providing for the lawyer’s disqualification. While Collaborative and Cooperative Law are most frequently employed in the family law context, their application is not restricted to family law.1 It is the opinion of this Committee that the practice of Collaborative Law violates Rule 1.7(b) of Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful.2 The Committee further concludes that pursuant to Colo.RPC 1.7(c) the client’s consent to waive this conflict cannot be validly obtained. Because Cooperative Law lacks the disqualification agreement found in Collaborative Law, the practice of Cooperative Law is not per se unethical. However, those participating in Cooperative Law face unique ethical issues and must be mindful of myriad potential ethical pitfalls discussed below.