By: Danaé Woody
Collaborative divorce is a private, voluntary, non-adversarial and contractual approach to resolve a dissolution of marriage without involving the courts. Think of collaborative divorce as settlement discussions with two attorneys working with the parties to problem solve. When the parties reach an agreement, they bring their agreement before a family law judge for solemnization.
The process requires a written agreement between two parties (“Collaborative Participation Agreement”). The parties also sign a collaborative fee agreement to hire their respective attorneys. In the Collaborative Participation Agreement all parties agree to openly share information, including financial and similar disclosures common to the traditional dissolution of marriage. Next, all parties agree to refrain from posturing or threats of litigation. After all, one of the core principles of collaborative divorce is to avoid litigation. Finally, the attorneys are bound to withdraw from representation if the collaborative process breaks down and the parties decide to litigate or one party breaches the agreement. The reason for the disqualification clause is so that a safe negotiating space is created and the parties do not have to worry about one another’s attorneys cross-examining them should they decide litigation is unavoidable.
Although used throughout the United States and around the world, the collaborative model is greatly underutilized in Colorado. While not appropriate for every case, collaborative divorce has many positive attributes that may make it a great option for divorcing families. By staying out of a courtroom, parties ensure that their personal matters remain confidential. Additionally, the process is relatively efficient and affordable when compared with the traditional litigation approach to divorce. Without the necessity of motions, court appearances, depositions, battling experts and trial preparation, parties to collaborative divorces typically enjoy reduced attorneys’ fees and costs when compared with similar cases that must be litigated. Attorneys receive specialized training in collaborative Law to both understand the practicalities of the model and to change their paradigm from adversarial litigators to effective problem solvers.
Moreover, the process can be interest-maximizing for spouses. With assistance to the family unit from a neutral facilitator, neutral financial advisor, and/or neutral mental health professionals, parties are positioned to focus their attention on the best overall outcomes for their family rather than being pitted against the other spouse with children potentially caught in the middle of a warzone. Both parties enter their collaborative divorce settlements willfully and typically feel that they were allowed much more control over the process and end-result than parties to a litigated divorce. Finally, the process is entirely more comfortable than litigation. Because collaborative divorce operates outside the courts and is more informal, some parties are more at ease throughout the process.
The nature of collaborative divorce requires parties to come into negotiations with reasonable positions and be willing to listen to and work with one another. The process requires some level of trust, even when trust between parties may have broken down during the relationship. Therefore, parties with significant conflict in their relationships or who find themselves with a coercive or abusive partner will decide with their attorneys if the collaborative process is the right fit for their dissolution proceeding. Generally, parties to a collaborative divorce complete the process with a deeper sense of resolution and satisfaction with their divorce proceedings. Post-decree disputes and litigation are virtually non-existent in collaborative cases, likely because both parties and their counsel commit to complete resolution for the interests of the family versus “winning” the divorce case.
Ethics of Collaborative Divorce
As the collaborative divorce model began to gain traction in the family law community in Colorado, across the United States, at least two ethics committees authored opinions regarding the ethical issues raised by the practice. Colorado’s Formal Ethics Opinion 115, issued February 24, 2007, held that the four-way agreement (signed by both attorneys and both clients) formerly used in Colorado for a collaborative divorce makes the practice per se unethical because it violates Colorado Rule of Professional Conduct 1.7. That rule dictates that responsibilities to third parties may not limit an attorney’s representation. Colo. RPC 1.7(a)(2). Moreover, the four-way collaborative divorce agreement requires the attorney to withdraw if the parties cannot reach a resolution. According to this Opinion, the attorney’s contractual responsibility to the other party to withdraw under a four-way agreement is at direct odds with the obligation of adequate representation the attorney has to the client.
In addition, the client cannot waive such a conflict under Rule 1.7(b). This rule requires evaluation of two criteria to consent to a conflict: (1) whether the lawyer believes the conflict will adversely affect representation, and (2) whether the conflict will arise and “materially interfere” with the attorney’s professional judgment. The Colorado Opinion set forth that a client cannot consent to this conflict based on the second of the criteria. Not only is the likelihood of the conflict significant (occurring anytime the parties will not agree), but the agreement itself interferes with the attorney’s judgment in foreclosing the alternative of litigation.
In response to the Colorado Opinion, the American Bar Association issued Formal Ethics Opinion 07-447 on August 9, 2007. Overall, the ABA Opinion disagrees with the Colorado Opinion because it “turns on a faulty premise.” The ABA Opinion agrees that the four-way agreement creates a responsibility to a third party but disagrees that the responsibility creates a conflict of interest. Additionally, the attorney’s agreement to withdraw does not compromise his or her ability to represent the client. The agreement, in fact, is consistent with the client’s goal of achieving settlement. Because the client enters the representation with settlement as the only objective, withdrawal following a breakdown of collaboration does not materially limit the attorney’s ability to counsel his or her client. Therefore, according to the American Bar Association, collaborative divorce with a four-way agreement is not unethical on its face because the client begins the relationship with limited objectives and litigation foreclosed. Practitioners outside of Colorado, both throughout the United States and internationally, use four-way agreements in the practice of collaborative Law with no ethical consequences.
It is important to note that as of the date of the ABA Opinion, Colorado was the only state bar that had reached a different conclusion. Taking the Colorado Opinion and the ABA Opinions together, each committee seems to focus on different things. This concept is discussed by Scott R. Peppet, of the University of Colorado Law School, in his article, The (New) Ethics of Collaborative Law, Dispute Resolution Magazine (Winter 2008). In analyzing collaborative divorce, the ABA and Colorado Opinions make different assumptions and premise their opinions on those assumptions. The Colorado Opinion, for instance, assumes the four-way agreement is the only effecting document, while the ABA Opinion assumes the four-way agreement is an additional effecting document.
Regardless, in response to formal Ethics Opinion 115, Colorado collaborative divorce practitioners do not utilize four-way agreements at all. Instead, practitioners use (1) participation agreements signed only by the divorcing parties, and (2) retention agreements wherein no formal contractual conflict of interest arises. Footnote 11 of Ethics Opinion 115 specifically indicates that if only clients were to sign the agreement there would be no ethical violation.
Today the practice of collaborative divorce law in Colorado is alive and well. Hundreds of family law attorneys and other allied professionals have trained in this model and successfully practice collaborative divorce law. Colorado Collaborative Divorce Professionals (CCDP), the statewide organization supporting practitioners in Colorado, provides annual training and more information regarding the model. Please contact Terri Harrington (firstname.lastname@example.org) or visit ccdp.org for more information.
Danaé Woody is the founder of Woody Law Firm, a boutique family law firm in Denver. She is on the Executive Councils of the CBA Family Law Section and Young Lawyers Division and is a member of the Modern Law Practice Initiative and Denver Source for Collaborative Divorce. She can be reached at email@example.com. The author also thanks Terri Harrington and Alexandra Smits for their contributions to this article.