Articles
Note Regarding Ethics in Family Law and New Rules of Professional Conduct Nancy Cohen October 2009
Nancy Cohen wrote as a section of her article on ethics in family law and the new rules of professional conduct in the October 2008 Colorado lawyer the following:
In 2007 the Colorado Bar Association issued formal ethics opinion 115: ethical considerations in the collaborative and cooperative law contexts. Collaborative law and cooperative law often are used in the family law context as a problem-solving model rather than an adversarial model to reach a resolution in a domestic relations case. Collaborative law requires the lawyers and each party to enter into a quote four-way agreement," which typically requires the parties to timely disclosed all relevant materials and sometimes requires a lawyer to withdraw if the lawyer believes the client is participating in bad faith. Collaborative law is similar in principle, but does not feature the "four-way agreement."
Opinion 115 concludes that the practice of collaborative law violates the former CRPC 1.7 (b) when a lawyer enters into a contractual agreement with the opposing party, requiring the lawyer to withdraw if the process is unsuccessful. The opinion further finds this to be a nonconsentable conflict. The opinion does not find cooperative law to be per se unethical but lists several significant "potential ethical pitfalls," including when the cooperative law agreement is entered into, when the lawyer terminates the relationship with the client, when the lawyer communicates with the client, when the client is under a disability, and when the lawyer accepts referrals from cooperative law organizations.
As of the publication date of this article, opinion 115 has not been updated to reflect the revisions to the rules. For example, CRPC 2.2, allowing a lawyer to act as an intermediary, has been repealed. CRPC 1.7 addresses special considerations in common representation, which may be applicable to family law practitioners considering a collaborative or cooperative law of arrangement. It is unclear how these revisions will affect opinion 115.