Attorneys who have substantive knowledge of a particular area of law are sometimes brought in as neutrals in Collaborative Law cases. Parties sometimes want unbiased advice on how a court would likely interpret the facts and how parties draft settlement agreements to address the major legal concerns that this area of law raises, in order to help them reach a negotiated resolution. Some attorneys with proper training also act as coach-facilitators in these cases. Is this ethical? The attorney should consider the following guidelines:
1. Under the preamble to the Model Rules of Professional Conduct, “In addition to representational roles, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.” It is OK to be a neutral. .
2. An attorney “shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as … third party neutral, unless all parties give informed consent, confirmed in writing.” The exception is if the attorney’s firm establishes an “Ethical Wall” (formerly known as a “Chinese Wall”).
3. An attorney who has served as a neutral may not seek employment from a party or lawyer.
4. A lawyer who is serving as a third party neutral must inform unrepresented parties that the lawyer is not representing them. Even though both parties have lawyers who represent them in a Collaborative case, it is still a good idea to include appropriate language in the retainer letter.
5. Lawyers who are members of the International Academy of Collaborative Professionals (IACP), the largest industry group, are also subject to IACP ethical standards. Under those standards, the lawyer “shall not engage in any continuing client relationship that would compromise the Collaborative practitioner’s neutrality.”
6. Under the IACP standards, a lawyer who is hired as neutral must stick to that role. While the advice he gives may make one client or the other unhappy, he should seek to provide it in a way that does not unduly increase the conflict between the clients (diplomacy!) and appears to be neutral, rather than advocating for one client over the other.
7. In a family case, the IACP standards prohibit lawyers from working with either or both client(s) or with their child(ren) outside of the Collaborative process. However, although the standards are not entirely clear, it appears that a neutral could work with both parties at the same time if permitted under legal ethics rules. Attorneys should carefully consider the degree to which they can do so without wading into a non-waivable conflict of interest, as well as the amount of informed consent about joint representation they need to provide.
It sometimes surprises non-lawyers that attorneys have ethics! In fact, ethics is a required class in law school, a required part of the bar exam and in many states a continuing education requirement. As important as ethics can be in typical legal practice to resolve tensions among lawyer self-interest, client self-interest and the interests of tribunals and other parties, they are even more important in Collaborative matters. The reason is that building trust in the process and participants is such a vital part of this type of work. In other words, even as neutrals, attorneys should be mindful that they are modeling ethical, trustworthy behavior, which can only enhance the process and strengthen the Collaborative team.
Jeffrey Fink is an attorney in Wellesley, Massachusetts who helps businesses and families resolve disputes as a mediator, arbitrator, settlement counsel and collaborative attorney. Contact Jeffrey Fink at 781-237-0338 or visit http://www.jfinklawadr.com