Ethical Considerations For The Practice of Collaborative Law
By Elizabeth L. Bennett, Esquire and Kathleen B. Vetrano, Esquire
King of Prussia, PA and the Philadelphia Main Line
Collaborative family law is a flexible model the essence of which is a commitment not to litigate. The model may include both a traditional negotiation process, collaborative law only, whereby there are two attorneys and two clients or it can be expanded to include one or more or all of the following: a child specialist, a neutral financial consultant, and coaches for the parties. In order to perform a collaborative process in an ethical fashion, it is essential that all members of the team be fully cognizant of the ethical considerations which arise incident to the collaborative process relevant to their specific profession – law, accounting and psychology. In addition, they must be trained in the collaborative process and be committed to full disclosure and consistency in the application of collaborative principles.
The collaborative agreement, which is signed at the beginning of the process, requires that collaborative lawyers must resign, both of them, in the event that either party seeks to participate in litigation. Collaborative lawyers should also seek to withdraw from the process if one of the parties violates the collaborative agreement and provides false information or withholds information critical to the settlement process. An analysis of the ethical rules applying to the collaborative process should be based on the assumption that collaboration is a hybrid process in which each attorney has two roles – (1) that of an advocate retained for limited purposes and released from the strictures of attorney-client confidentiality and (2) that of an attorney engaged for a common purpose representation such as a family estate or a family business reorganization.
In the event that the process is terminated, the attorneys have an obligation to transfer their clients to appropriate professionals who can handle their case with the necessary expertise in a non-collaborative fashion. A corollary to the above considerations is an ethical obligation for each professional in a multi-disciplinary team to maintain professional boundaries and to cooperate as part of the team.
For purposes of identifying the ethical issues that a collaborative lawyer faces, the collaborative process can be analyzed as a form of release and waiver of rights which is regulated by the Pennsylvania Rules of Professional Conduct. The Pa.R.P.C. 1.8 (h) precludes a lawyer from prospectively obtaining a release from a client limiting the lawyer’s liability unless such release is permitted by law and the client is advised of their right to be independently represented in making the agreement. Thus, the Collaborative Fee Agreement and initial conversation should advise the prospective client that they should consider getting the independent advice of counsel with reference to the analysis of the waiver of rights and potential limitations inherent in the collaborative process.
Before beginning the collaborative process the lawyer has a duty to explain the process fully – the specific rights waived by an agreement not to litigate such as: discovery, the right to subpoena third parties, the right to file affidavits, the right to request production of documents and to seek the enforcement of those requests through petition to compel or imposition of sanctions. Pa.R.P.C. 1.0 Terminology defines informed consent as consent after receipt of “adequate” information and explanation about the material risks of the proposed course of conduct. After explaining the significance of the waiver of right to litigate, the lawyers should confirm the content of the informed waiver in writing to the client, if the client has not already signed an acknowledgment of their informed consent. The new adopted Pennsylvania Rules of Professional Conduct have added language provisions for specific and prompt confirmation in writing of an informed consent. Consent should not be inferred from silence. Further, as referenced before, the new Comments to the Rules state that some circumstances may require an attorney to refer their client to another attorney to seek advice on this implication of the consent.
Rule 1.2(C) provides that a lawyer may limit his representation of a client but only following disclosures which guarantee the informed consent of the client. The comment to Rule 1.2 “Services limited in Objectives and Means” clearly states “the terms upon which representation is undertaken may exclude specific objectives or means.” However, this provision is modified by the admonition that: “. . . the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1, [Rule 1.1 Competence] to surrender the right to terminate the lawyer’s service or the right to settle litigation that a lawyer might wish to continue.”
Rule 1.1 provides that competent representation requires “the legal knowledge, skill, thoroughness and preparation necessary for the representation.” Thus, anyone considering collaborative family law should have the necessary experience and knowledge to handle any family law matter and has a duty to seek the services of or associate with another lawyer or professional who is competent to handle those areas for which he may not be fully prepared. However, an agreement for limited representation can be considered in determining competence. Thus, an attorney with little litigation experience in the local jurisdiction might still be competent for collaboration. A corollary point is that no lawyer should get swept up in a rush to collaborate when the lawyer knows the process may not be appropriate. Collaboration, like mediation, should be used selectively.
In order to avoid the potential possibility of an anti-trust violation for price fixing or any charges of conflict of interest and fee sharing, professionals participating in the collaborative process should keep their billing separate and establish charges consistent with their usual practice. The party should be advised that any affiliation of collaborators is not a “firm”. Further, it is important that it be established that no team member receive financial remuneration for referring a collaborative matter to another team member and the fee agreement between each attorney and client should be set forth in writing.
Probably the most significant qualitative distinction between the collaborative team and the traditional constellation of professional relationships during litigation is the relinquishment of the promise of confidentiality. The Pennsylvania Rules of Professional Conduct require releases for the disclosure of confidential information, Rule 1.6(a). In order to comply with this ethical rule, collaborative professionals should have their clients execute a release permitting the professionals, including attorneys, therapists, and financial advisors, to speak with each other. Without the necessary signed releases the parties cannot discuss the case as a team. (NOTE: Therapists and accountants also have their own professional confidentiality rules and must meet the ethical requirement of their specific profession in this regard.)
The “after consultation” provision for “release of confidentiality” is similar to the informed consent requirements necessary for any enforceable release. Thus, once again, it is important that the initial consultation include a thorough discussion of the process itself, the necessity for all members of the team to confer with each other, the risks of the sharing of information between the neutral financial person and the attorneys as well as the coaches. The possible consequences and material risks of waiving confidentiality should be presented as well as once again the advice that the client may want to consult outside counsel. As a practical matter, it is necessary in a team approach that the client understand he is no longer protected by the right to claim attorney/client privilege. The release of privilege, however, should be qualified by a special informal ethical consideration which is specific to the collaborative process as well as consideration of the Commentary to the Rules. That consideration is the advisability of only releasing information which the professional, using his or her best judgment, believes is useful because it is pertinent to the collaborative divorce process. The collaborative professional should not use the release as an excuse to communicate facts that are not relevant to the disclosure requirements of the collaborative agreement or critical to the substantive rights of either party or the process. The collaborative professionals should not use that information to gossip with other team members.
The Comments to Rule 1.6 provide a broad standard for confidentiality stating that the Rule does not apply only to confidential communications but also to communications “relating to the representation, whatever its source”. The fact that the team may talk freely about a case should not, in any way, reduce the team participants’ cognizance of the necessity of keeping all information relating to the case confidential in terms of communication with anyone outside the team. This interfaces with Rule 1.4 Commentary that emphasizes the necessity for full and adequate exchange of information and the necessity of accountability to and consultation with the client.
In order to encourage a sense of security and openness in the negotiation of a settlement, the collaborative agreement provides that both parties agree not to subpoena their attorneys should the case break down and the attorney resign from the process and the parties go to litigation. Nevertheless, the threat of resigning should not impair the client’s right to settle under Rule 1.2 which provides for a client’s right to settle precluding use of a threat of resignation to thwart the client’s interests.
The collaborative process benefits from special attention to the permissive provisions of the Professional Conduct Rule 2.1 providing that “a lawyer may refer, not only to law but to other considerations, such as moral, economic, social and political factors, that may be relevant.” This is particularly important in a family matters since the very nature of the family unit is that it is held together by a moral commitment, creates an economic relationship and serves a social purpose.
Of specific relevance are the Comments to Rule 2.1 which proffer that the lawyer’s responsibility is not limited to pure legal matters, but may include discussion that the case involves more than “strictly legal considerations”. The Comments recognize that purely technical legal advice may be inadequate in certain circumstances and that many legal questions encompass moral and ethical considerations which should “decisively influence how the law is applied”.
On another issue, a recent article in the Ethics Digest of the Pennsylvania Bar News specifically admonishes collaborative practitioners against advertising as an “association of independent contractors” on the ground that it could be argued that joint advertising implied a conflict of interest to members; the word association, possibly, could be construed as referring to a form of consent relationship.
The fact that collaborative professionals may work as a team released to share information with each other pursuant to waiver of confidentiality presents conflict of interest issues:
Rule 1.7 states:
(a) . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibility to another client, a former client or a third person or by a personal interest of the lawyer.
The collaborative process presumes that the individual came to the attorney with the purpose of getting assistance in preserving some of the key fundamentals of a functioning family unit – communication, transparency, and accountability. Thus, the conflicts that may exist can be better construed under the Rules and especially Commentary applicable to common representation in the non-litigation context – attorneys helping a large family with their estate planning or a family business reorganization. In these instances one attorney has a duty to each individual as well as to the family – the common group. It is the client’s goal that the lawyer be both an advocate and a servant to the promotion of an orderly fair dissolution of the matter.
The consentability of the conflict arises out of the fact that the clients are generally aligned in interest even though there are some differences among them. This indeed is the essence of the collaborative process. In common representation, the attorney-client privilege does not exist. In common representation each party has a right to disclosure as in the collaborative process. In common representation the lawyer has a duty to disclose that information which will be material. See Comments  to  to Rule 1.7.
Thus, although replete with ethical issues, the challenge of the lawyer in the collaborative process can be met after careful consideration of these issues. The value of the process is that it fosters creative solutions to family problems, which are available as a result of open communications and the creativity that flows from negotiation as opposed to litigation.
Libby Bennett practices family law in Wayne, Pennsylvania (www.ebennettlaw.com) and Kate Vetrano practices family law in King of Prussia, Pennsylvania (www.VetranoLaw.com). They are co-founders of Collaborative Family Law Affliliates (www.CollaborativeFamilyLaw.com).