What is Collaborative Practice?

Collaborative practice is a model of dispute resolution that arose approximately twenty years ago in the state of Minnesota, in response to the destructive outcomes that families regularly suffered in the wake of litigated divorces. The goal of collaborative divorce is to facilitate effective dispute resolution through the modeling of positive communication and a focus on interests of both parties. In addition to attorneys, other collaboratively-trained professionals are included in the process to help explore outcomes that address the parties' goals and concerns with an eye toward the future. Since its inception, collaborative practice has grown from a local idea to an international movement with thousands of practitioners around the world.

What can I talk to my client about?

The collaborative lawyer is obligated to comply with all rules of professional conduct, including the obligation to educate the client about the law and to ensure that the client is informed throughout the process. In the collaborative model the lawyers, clients and other team members sign a Collaborative Participation Agreement that serves as the first of several "anchors" to guide the team through the process.
 
In order to maintain the integrity of the process as non-positional, the attorneys agree not to strategize or discuss substantive issues with their clients outside of group meetings. This is an important aspect that should be discussed by the attorneys at the outset of the process, to ensure that both attorneys have the same understanding.
 
Full disclosure of any information that may be deemed important to the other party is a cornerstone of the collaborative process. Clients need to understand that there has to be full transparency in the process.
 
Within the collaborative process there is a partial waiver of the attorney-client privilege. While the signing of a participation agreement constitutes consent to allow the attorney to share the party's otherwise privileged information with the team to the extent that such information is material to the process, the party may revoke that consent at any time, though the decision to do so may necessitate the termination of the collaborative case.
 
Attorneys and other professionals retained within the collaborative process agree to a disqualification provision that precludes their involvement in any contested litigation in court.

What about giving legal advice?

Each attorney has an ethical obligation to ensure that a client's decision to pursue the resolution of his or her case collaboratively has been reached through informed consent. This means that an attorney has a duty to discuss with a prospective client the various means of dispute resolution available, and the risks and benefits inherent in each. Attorneys should review the requirements of ABA Formal Opinion 07-447 "Ethical Considerations in Collaborative Law Practice".
 
Clients must be advised on the law during the process so that they are aware of what the law is, what might happen in court, and how their outcome may differ from a court-imposed outcome when making decisions. In the collaborative model both attorneys present the law to the clients together, including where applicable any differences of opinion, ensuring that both parties are working with the same information.
 
In the collaborative model, as in mediation, the law simply provides a reference point for the clients to consider.

How do we know we're following the same rules?

One of the anchors of the collaborative process is the execution of a collaborative participation agreement by all parties and professionals at the outset of the process. The collaborative participation agreement establishes the ground rules for the parties and professionals during the process. These include an agreement to refrain from initiating litigation, to provide full transparency and disclosure, to participate and communicate with integrity and respect, to pursue agreements that serve the interests of both parties, and to preserve the status quo during the process unless and until the parties agree otherwise.
 
While all collaborative cases share some fundamental elements, the actual implementation of the collaborative model may vary somewhat from practitioner to practitioner. Collaborative practice groups from the District of Columbia, Maryland and Virginia have recently completed a set of best practices in an effort to promote uniformity of practice in the tri-state collaborative community. The "Best Practice Protocols" promote uniformity in practice by providing a "how to" manual for collaborative practitioners in the D.C. Metro Area. The practice protocols contain, among other things, form agreements and process checklists.
 
In addition to these regional efforts to promote uniformity in practice, the International Academy of Collaborative Professionals has drafted and begun promoting the adoption of the Uniform Collaborative Law Act ("UCLA"). The UCLA was unanimously adopted by the Uniform Law Commission in 2009. The UCLA has been adopted in Utah, and nine other jurisdictions are in the process of introducing the UCLA to their legislatures: The District of Columbia, Michigan, Minnesota, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania and Tennessee.
 
Because of differences in approach among individual practitioners, it is important for the collaborative to team discuss what rules will be applied and be sure that those rules are clearly set forth in the collaborative participation agreement, before presenting the participation agreement to the clients.