In the words of Boston collaborative lawyer David Hoffman, "The civilized resolution of conflict in American society recently took a giant step forward with the issuance of an important ethics opinion by the American Bar Association (ABA) upholding the use of "collaborative law" agreements by lawyers."
The opinion, issued in August 2007, affirms that lawyers do not need to be gladiators in order to satisfy fully their ethical duty to represent clients diligently. Rather, it is entirely ethical for lawyers to work solely toward an out of court settlement that is acceptable to the clients, if that is what their clients have directed them to do. Provided the clients are fully informed about their conflict resolution alternatives and make an informed choice of collaborative law, there is no ethical rule that prevents lawyers from being hired solely to work toward settlement, and to be barred by the collaborative participation agreement from taking the matter to court.
The ABA ethics opinion squarely rejects as wrongly decided a maverick advisory opinion issued in early 2008 by the Colorado Bar Association, the sole such opinion finding ethical barriers to the practice of collaborative law. The Colorado opinion has caused some unease among practitioners, even though it was never binding even in Colorado. This new and far more authoritative opinion from the American Bar Association should put those concerns to rest.
To read more about the opinion, see David Hoffman's op-ed piece in the Christian Science Monitor: