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ABA opinion is welcome statement on collaborative divorce

Earlier this year, an ethics opinion by the Colorado Bar Association sent shock waves through the collaborative divorce movement. Now, a formal opinion by the American Bar Association Standing Committee of Ethics and Professional Responsibility sets the collaborative world at ease.

Collaborative divorce is a settlement-based methodology that has exploded in popularity over the last several years. In a collaborative divorce, the parties and attorneys agree to avoid court hearings and formal discovery. Mental health coaches and neutral financial professionals, as well as child specialists, may be employed in a multidisciplinary approach to problem-solving.

The key to a collaborative divorce is an agreement that if the process fails and litigation is necessary, both attorneys must withdraw and transition the clients to litigation counsel.

In Wisconsin, the Collaborative Family Law Council of Wisconsin, founded in 2000, now has over 100 lawyer members, plus mental health and financial professionals. (Go to www.collabdivorce.com.)

In Colorado Bar Association Ethics Opinion 115 (Feb. 24, 2007), the Colorado Bar concluded that the disqualification requirement caused a non-consentable conflict between the lawyer and the client. While all other bar associations that have considered the issue have disagreed with the Colorado opinion, it created fear among collaborative practitioners that it might be followed elsewhere. Therefore, the ABA opinion will be welcomed in the field.

The ABA opinion, No. 07-447, is entitled, “Ethical Considerations in Collaborative Law Practice, and it was released on Aug. 9.

It noted that ABA Model Rule 1.2c (SCR 20:1.2c in Wisconsin) allows a lawyer to limit the scope of representation as long as the limitation is reasonable and the client gives informed consent. While the ABA opinion agreed with the Colorado opinion that the disqualification agreement creates a “responsibility to a third party” within the meaning of Rule 1.7(a)(2) [SCR 20:1.7(a)(2) in Wisconsin], the ABA did not find that this responsibility creates a conflict of interest. Instead, the ABA opined that the withdrawal agreement does not impair the lawyer’s ability to represent the client, but “rather is consistent with the client’s limited goals for the representation.”

As readers of this column are aware, it is my belief that two knowledgeable, competent individuals should be able to knowingly and voluntarily contract for what they believe to be in their best interests without interference from outside parties, including the government, absent some overriding state interest. Those who have seen the effects of divorce litigation on parties are acutely aware of its long-lasting effects on their ability to co-parent in the future, whether their children are minors or adults.

After six years of experience with collaborative law, it is clearly not for every case. In certain cases, the existing damage to the marital relationship cannot be salvaged by any currently known resolution-based system. For other cases, however, having the parties and their lawyers commit to a settlement-based methodology with a significant cost to failure can “stop the bleeding” inherent in a dysfunctional relationship and promote healing.

As the ABA opinion makes clear, full disclosure of the process and its risks are critical. With such disclosure, however, parties have a tool available, which, if they so choose, may work for their long-term benefit.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via e-mail at gherman@loebherman.com.

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