A New Way to Avoid the Courtroom: The Ethical Implications Surrounding Collaborative Law

Georgetown Journal of Legal Ethics, The, Summer 2005 by Isaacs, Joshua

32. See Owen M. Fiss, Against Settlement, 93 YALE LJ. 1073, 1075 (1984).

33. See Schwab, supra note 4, at 387.

34. See Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754, 791 (1984) ("[t]he limited remedial imagination of courts . . . narrows not only what items might be distributed but also how those items might be apportioned"); see also Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers'Responsibilities, 38 S. TEX. L. REV. 407, 427 (1997) ("[r]ules premised on adversarial and advocacy systems, with legal decision-makers, simply do not respond to processes which are intended to be conducted differently (in forms of communication, in sharing of information, in problem analysis and resolution) and to produce different outcomes (not necessarily win-loss, but some more complex and variegated solutions to legal and social problems)"); Telephone Interview with Daniel J. Goldberg, Partner and Chair of the Family Law Department, Messerli & Kramer P.A. (Feb. 12, 2005) (on file with author) [hereinafter Goldberg Telephone Interview]. Goldberg claims that approaches like Collaborative Law provide more leeway to clients reaching creative mutually beneficial agreements. Because judges might not be as familiar with the specific desires of the individual parties, sometimes they are placed in a position where they appear "like a surgeon doing an operation with a dull knife." Id.

35. See Lande, supra note 2, at 1382-83.

36. See id. at 1329.

37. See Macfarlane, supra note 3, at 209 ("discussions with experienced [Collaborative Law] counsel indicate that a central ethical issue for the practice of [Collaborative Law] is the quality and depth of informed consent to the procedural, and perhaps the substantive, values of [Collaborative Law]").

38. See Schwab, supra note 4, at 363; see also MODEL RULES OF PROFESSIONAL CONDUCT pmbl. 1[ 2 (2003) ("[a]s advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others") [hereinafter MODEL RULES].

39. See Lande, supra note 2, at 1329 (suggesting that this tension might "leave clients without an effective advocate to promote their interests and protect them from settlement pressure").

40. MODEL RULES Rule 1.2(c).

41. MODEL RULES Rule 1.2 cmt. 6.

42. N.C. State Bar Ass'n, 2002 Formal Ethics Op. 1 (2002), available at 2002 WL 2029469.

43. MODEL RULES Rule 1.0(e). Model Rule 1.0, Comment 6, provides a description of the sorts of topics that a lawyer must cover in order to achieve informed consent from a client: "this will require communication that includes ... any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives." Id. cmt. 6 (emphasis added).