University of Missouri School of Law Scholarship Repository Faculty Publications 2003 Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering John M. Lande University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Dispute Resolution and Arbitration Commons, Ethics and Professional Responsibility Commons, and the Litigation Commons Recommended Citation John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in A New Model of Lawyering, 64 Ohio St. L.J. 1315 (2003) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering JOHN LANDE* This Article assesses the possibilitiesfor collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualificationagreement, which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiatefrom the outset ofthe case using a problem-solvingapproach. Under CL theory, the process creates a metaphorical "container" by using a disqualificationagreement disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This Article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-basedjoint problem- solving, collaboration with professionals in other disciplines, and intentional development of a new legal culture through activities of local practicegroups. Although the disqualificationagreement is undoubtedly helpful in many cases, it also can invite abuse by inappropriatelyor excessively pressuring some parties to settle when it would be in their interest to litigate. It is unclear whether the disqualification agreements violate rules of professional conduct governing withdrawalof attorneys. This Article encouragescourts and ethics committees to permitpeople to use them unless and until there is evidence that they produce a significant risk of serious harm. The Article also urges CL practitioners to experiment with "cooperativenegotiation," i.e., using CL techniques without the disqualification agreements. CL groups should cooperate with empirical researchers to determine how much the benefits of CL are caused by these agreements as comparedwith other aspects of the process. * Associate Professor and Director, LL.M. Program in Dispute Resolution, University of Missouri-Columbia School of Law, J.D., Hastings College of Law, Ph.D., University of Wisconsin-Madison. Sincere thanks to Bob Bailey, Ed Brunet, Jonathan Cohen, Sarah Cole, Chris Fairman, Bill Fisch, David Fischer, Dwight Golann, Tim Heinsz, Art Hinshaw, Brad Hunter, Lee Jordan, Jim Lawrence, Julie Macfarlane, Carrie Menkel-Meadow, Scott Peppet, Bob Rack, Len Riskin, Andy Schepard, Sherri Goren Slovin, Jon Snipper, Jean Stenlight, Pauline Tesler, Rod Uphoff, and John Wade for thoughtful comments on an earlier draft of this article, participants in my work-in-progress workshop at the University of Missouri-Columbia Law School, and to participants in the Collaborative Law and Collaborative Lawyering Conference at Osgoode Hall Law School for receiving my heretical presentation with personal warmth, good cheer, and helpful reactions. This Article does not necessarily represent the views of any of these people. HeinOnline -- 64 Ohio St. L.J. 1315 2003 1316 OHIO STATE LA WJOURNAL [Vol. 64:1315 TABLE OF CONTENTS I. INTRODUCTION AND OVERVIEW OF COLLABORATIVE LAW ............. 1317 II. LEGAL ETHICS RULES RELATING TO COLLABORATIVE LAW ........... 1330 A . Zealous Advocacy ....................................................................... 1331 B . Other EthicalRules ..................................................................... 1338 III. PROPRIETY AND EFFECTS OF COLLABORATIVE LAWYER DISQUALIFICATION AGREEMENTS ..................................................... 1344 A. Ethical Rules Governing Lawyer Withdrawal Agreements ............................................................. 1345 B. Differences Between Traditional Withdrawal Agreements and CollaborativeLaw DisqualificationAgreements ...................................................... 1351 C. Policy Issues Regarding CollaborativeLaw DisqualificationAgreements ...................................................... 1357 IV. CLIENT AND LAWYER CONTROL IN COLLABORATIVE LAW ............. 1360 A . Control by Clients ....................................................................... 1362 B. Control by Lawyers ............................ 1368 V. ASSESSMENT AND RECOMMENDATIONS REGARDING DISQUALIFICATION AGREEMENTS ..................................................... 1372 A. Ethical ProprietyofDisqualfcation Agreements .................... 1373 B. Experimentation With Negotiation Without DisqualificationAgreements ...................................................... 1375 VI. CONCLUSION: THE POSSIBLITIES FOR COLLABORATIVE LAW ....................................................................... 1379 HeinOnline -- 64 Ohio St. L.J. 1316 2003 2003] POSSIBILITIES FOR COLLABORATIVE LA W 1317 I. INTRODUCTION AND OVERVIEW OF COLLABORATIVE LAW Is collaborative law (CL) a revolutionary idea whose time has come?1 CL proponents say that it constitutes a "paradigm shift" 2 in dealing with legal cases and that it is the "next generation" of family dispute resolution.3 CL practitioners 1 See RICHARD W. SHIELDS ET AL., COLABORATIVE FAMILY LAW: ANOTHER WAY TO RESOLVE FAMILY DISPUTES xiv (2003) (authors claim that they "have joined the revolution"); VICTOR T. TOUSIGNANT, COLLABORATIVE LAW: SURVIVAL GUIDE FOR THE NEW MILLENNIUM 9 (2002) ("Collaborative Law is an idea whose time has come.") (material prepared for Collaborative Law and Collaborative Lawyering Program, Osgoode Hall Law School, on file with author); James K. L. Lawrence, Review, Retooling the Practice of Law Through Collaborative Law, Disp. RESOL. MAG., Spring 2002, at 27 ("Collaborative lawyering is a practice skill whose time has come for lawyers in domestic relations"); Tom Arnold, Collaborative Dispute Resolution: An Idea Whose Time Has Come, at http://conflict- resolution.net/articles/arnold.cfm (last visited Oct. 4, 2003). For the primary source on CL, a manual published by the ABA Section of Family Law, see PAULINE H. TESLER, COLLABORATIVE LAW: ACHIEVING EFFECTIVE RESOLUTION IN DIVORCE WITHOUT LITIGATION 1 (2001) (hereinafter the "ABA CL manual"). 2 TESLER, supranote 1, at 27-28, 38-39, 52, 78. Tesler states that "paradigm shift refers to the alteration in consciousness whereby lawyers retool themselves from adversary to collaborative lawyers" by becoming aware of their adversarial patterns of thoughts and behaviors and developing new, collaborative ones. Id. at 78. Many CL proponents believe that CL represents a paradigm shift. See, e.g., SHIELDS ET AL., supra note 1, at 27, 31-34; Douglas C. Reynolds & Doris F. Tennant, CollaborativeLaw-An Emerging Practice,45 BOSTON B.J., Nov.-Dec. 2001, at 12-13; Brad Hunter, Profiles: Collaborative Lawyers of Saskatchewan, Inc., COLLABORATIVE REV., May 2002, at 25, 26; Karen Russell, Commentwy, COLLABORATIVE REV., Fall 2001, at 5, 5. In his classic book, The Structure of Scientific Revolutions, Thomas Kuhn defines "paradigm" as both "entire constellation[s] of beliefs, values, techniques, and so on shared by the members of a given community" and also "one sort of element in that constellation, the concrete puzzle-solutions which, employed as models or examples, can replace explicit rules as a basis for the solution of... puzzles of normal science." THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 175 (2d ed. 1970). CL is one element in the constellations of alternative dispute resolution and problem-solving. See infra note 252. As such, this Article generally refers to CL as a "model" rather than paradigm to avoid confusion between Kuhn's two definitions. For discussion of paradigm shifts in dispute resolution and law, see John Lande, Mediation Paradigmsand Professional Identities, MEDIATION Q., June 1984, at 19, 19- 25, 41-46 (describing a "mediation paradigm," which would now be called interest-based problem-solving); Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and LitigationReform, 59 BROOK. L. REV. 659, 695-705 (1993) (criticizing the "pop-culturization" of Kuhn's concept of "paradigm shift" by turning it into a "buzzword"). For discussion of a possible CL paradigm shift, see infra Part VI. 3 See TESLER, supra note 1, at 3 (calling CL the "next-generation family law dispute resolution mode"); Beth Beattie, Collaborative Law: The Next Generation in Dispute Resolution (April 17, 2002) (unpublished manuscript on file with author). One writer observes that "some collaborative practitioners speak of this new model with the soul-stirring language HeinOnline -- 64 Ohio St. L.J. 1317 2003 1318 OHIO STATE LA WJOURNAL [Vol. 64:1315 seek to provide a more civilized process than in traditional litigation, produce outcomes meeting the needs of both parties, minimize