Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering

Abstract This article assesses collaborative law’s potential to promote problem-solving negotiation and considers the impact of the collaborative law disqualification agreement on the operation of the collaborative law process. In collaborative law, the lawyers and clients agree to negotiate using a problem-solving approach. The process uses the disqualification agreement as a means to ensure that negotiating approach. The disqualification agreement instructs that both lawyers are disqualified from representing their clients if either party chooses to proceed in litigation. This article argues that much of collaborative law theory is useful, including protocols of early commitment to negotiation, interest-based joint problem-solving, collaboration with professionals in other disciplines, and intentional development of a new legal culture through activities of local practice groups. But the disqualification agreement, while helpful in many cases, may also invite abuse by inappropriately or excessively pressuring some parties to settle when it would be in their interest to litigate. This article considers whether disqualification agreements violate rules of professional conduct governing withdrawal of attorneys. It also encourages courts and ethics committees to permit people to use them until there is evidence that they produce a significant risk of serious harm. This article also urges collaborative law practitioners to experiment with “cooperative negotiation,” which involves using collaborative law techniques without the disqualification agreements. It encourages collaborative law groups to cooperate with empirical researchers to determine whether and to what extent disqualification agreements are important to achieving the benefits of collaborative law as compared with other aspects of the process.