The document summarizes the evolving landscape of collaborative law ethics. It discusses how collaborative law practices are changing with different organizations focusing on different practice areas. It also reviews potential sources of ethical guidance and some of the unresolved questions around issues like informed consent, limited scope representation, confidentiality, and how collaborative law should be practiced. It identifies opportunities to provide comments on proposed standards, work on crafting general guidelines for structured dispute resolution processes, and contribute to academic work on the topic.

1. THE EVOLVING
LANDSCAPE OF
COLLABORATIVE LAW
ETHICS
Presented by Jeffrey Fink, Esq. to
The ABA Dispute Resolution Section
Collaborative Law Committee
January 24, 2017
Copyright 2017 Jeffrey Fink. All rights reserved.

2. OVERVIEW

3. What is Ethics?
 We all think we’re “ethical”
 “Professional responsibility” sounds like a law school
class
 Contrast with practice guidelines
It’s really about how to be a lawyer

5. The Changing Face of Collaborative Law
 IACP is focusing on divorce and family matters
 GCLC is focusing on civil matters
 Many local US groups with local practice variations
 International application, with cross-fertilization of ideas
 This committee is broad-based and nondenominational
 UCLA is being adopted in two flavors
 Beyond any strict definition, more lawyers are practicing
forms of early dispute resolution that embody
Collaborative Law concepts

6. Sources of Guidance
 Model Rules with state variations
 State bar opinions (12 states)
 Work of this Committee
 ABA Litigation Section Settlement Guidelines (2002)
 IACP Standards (2009)
 Draft Revised IACP Standards (2016)
 Academic work

7. New Draft IACP Standards
 Updating of 2009 standards
 Initial burst of publicity in December 2016
 Purport to cover all professions involved, not just lawyers
 Not publicly available yet on IACP website – asked me not
to distribute to the Committee generally, but ok to talk
about it
 A great leap forward

8. Draft IACP Standards – The Good
 Enhanced coverage of disclosure of process options and
informed consent
 Better coverage of risk factors
 Coverage of team development
 Coverage of collaborative advocacy
 Better coverage of confidentiality and privilege
(acknowledges UCLA)

9. Draft IACP Standards – The Not So Good
• Not always clear which provisions apply to which
professions
• Insufficiently clear that they are not the basis for bar
discipline or liability
• Still have civil procedure-like aspects
• Don’t cover some common situations
• Team development section could reflect group dynamics
theory better

10. From the Civil Side
Unexplored Territory
A first crack at a set of standards that cover both family and civil:
www.jfinklawadr.com/model-collaborative-law-ethical-guidelines/

11. MORE QUESTIONS THAN
ANSWERS

12. Advertising and Intake
 Can you call yourself a specialist in Collaborative Law?
 Do you need a written retainer letter?
 In a law firm, who signs a retainer letter containing a
withdrawal clause?

13. Bar Discipline and Liability
 Can you be subject to bar discipline for failing to follow a
voluntary ethical standard?
 Can you be subject to liability for failing to follow a
voluntary ethical standard?
 Can you be subject to bar discipline or liability for failing to
follow a voluntary ethical standard that contains an
interpretation of a mandatory (Model Rules) standard?
Are there consequences for not being
sufficiently Collaborative in a
Collaborative Law process?

14. Informed Consent and Limited Scope
Representation I
 Model Rule 1.2(c) – Is limitation reasonable under the
circumstances and has client given informed consent?
 Model Rule 1.0(e) – Lawyer must communicate adequate
information and explanation about material risks and
reasonably available alternatives

15. Informed Consent and Limited Scope
Representation II
 What do you need to disclose up front? New IACP draft
standards 2.1-2.3 go further than prior IACP standards,
and include disclosure of full range of process options
 How do you know what’s reasonable or a risk factor
except in hindsight? Much external work, not codified.
 Who gives consent in an organizational client?
 Client competence to give consent: initial and ongoing

16. Contested Proceedings – A Voluntarily
Assumed Issue
 Does it include arbitration?
 Is an ethical wall in a larger firm ok?
 What role can a general counsel play? Lawyer as client?
 What parts of your file can or must you turn over to a
litigator if the collaboration falls apart?
 What about referral to another attorney in an office share?
At the edges, what are the
policies underlying the
withdrawal clause?

17. Law Firm Operations
 Can the primary lawyer use associates?
 Can the primary lawyer use other specialists within the
firm?
 Can the firm call in specialists from outside the firm?
 Can any of these lawyers come into meetings with (i)
client or (ii) the other side?
 Are your systems set up to flag possible issues after
withdrawal?

18. How to Act During a Case
 Contributing to the conflict of a client
 Teamwork and communications: ethics or practice
guidelines?
 Staged disclosure or full disclosure
 Confidentiality and privilege
 Whether and when to bring in third parties like coach-
facilitators, and what their qualifications should be

19. What is Collaborative Advocacy?
 Old Code of Professional Responsibility EC 7-1- “zealous
advocacy within the bounds of the law”
 Moved to Comment 1 to Model Rule 1.3 – “commitment
and dedication to the interests of the client and zeal in
advocacy”
 IACP Draft Standards 3.2, 3.3
 Unexplored issues around discussing rights and
obligations
 Raises issues of competence and informed consent

20. OPPORTUNITIES

21. Three Main Opportunities
Providing comments to IACP Standards Committee
Working with others who practice on the early dispute
resolution spectrum to craft general guidelines for
structured processes (other ABA groups?)
Academic work, white papers, etc.

22. Jeffrey N. Fink, Esq.
462 Washington St.
Wellesley, MA 02482
781.237.0338
jfink@jfinklawadr.com