'Collaborative Law Per Se Unethical'
This is the opinion of the Colorado Bar Association's ethics committee, and it is understandably generating controversy among legal bloggers. The opinion, Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts, concludes:
"[T]he practice of Collaborative Law violates Rule 1.7(b) of Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful. The Committee further concludes that pursuant to Colo.RPC 1.7(c) the client’s consent to waive this conflict cannot be validly obtained. Because Cooperative Law lacks the disqualification agreement found in Collaborative Law, the practice of Cooperative Law is not per se unethical. However, those participating in Cooperative Law face unique ethical issues and must be mindful of myriad potential ethical pitfalls."
With the collaborative approach growing increasingly common, particularly in family law matters, the opinion is sure to have repercussions well beyond Colorado. The collaborative law approach calls for the parties and their lawyers to agree to negotiation without litigation. If the process breaks down and litigation is required, the lawyers must withdraw from the case and new lawyers brought in. Agreeing to this process, says the Colorado Bar, requires the lawyer "to impair his or her ability to represent the client."
At Engaging Conflicts, Gini Nelson says the opinion may serve to promote cooperative law over collaborative law, given that the former lacks the required lawyer-disqualification agreement. But John Crouch at The Family Law News Blog sees the opinion as contrary to clients' rights:
"In my opinion ... this ruling violates clients' right to hire the counsel of their choosing, and their freedom of contract. It treats clients like children. In the long run, it cannot stand. Divorce is a dismal business for most divorce clients, and collaborative law is the single biggest thing that has come along to offer serious hope of making divorce less harmful."
In a later post, Crouch suggests that a way around this ethical stumbling block may be for only the clients to sign the collaboration agreement. At Legal Profession Blog, S. Alan Childress says he is not so sure that would satisfy the Colorado ethics committee. "Still," he writes, "it remains to be seen whether other states will view these agreements the same way, or whether the suggested solution of client-only agreements maintains the positives, structure, and binding power of collaborative law while passing ethical muster in various states."
The opinion is dated Feb. 24, 2006, but commentators agree it was issued on Feb. 24, 2007. This appears to be correct, given that the opinion that preceded it in number was issued in October 2006.
Posted by Robert J. Ambrogi on March 12, 2007 at 02:56 PM | Permalink | Comments (0)
High Court Clerks = Law Firm Trophies
In her Washington Post piece yesterday, No Justice In These Pay Scales, Dahlia Lithwick questions the signing bonuses of at least $200,000 that elite law firms will pay this year to recruit Supreme Court law clerks. For the former law clerks, it makes for "an awful lot of Pottery Barn furniture," she writes, but it makes "the already puzzling economics of elite law firm cachet ... truly incomprehensible."
Lithwick cites gossip blogger Davit Lat, of Abovethelaw.com, for calling these hires trophy purchases, "something for a firm to crow about," that stopped making economic sense several decimal points ago. This is particularly so, as Lithwick notes, given that Supreme Court ethics rules prohibit former clerks from participating "in any professional capacity in any case" before the court for two years after they leave.
But what of the potential for compromise before these clerks leave the court? At his blog LawBeat, Mark Obbie poses what he labels the "real clerk-pay scandal":
"[A]ren't they compromised in their SCOTUS jobs by the knowledge that in a few short months, some -- but only some -- of the lawyers before them will be ready and quite willing to shove bags of cash into their paws? Here we have clerks helping justices research and decide cases. Many of the cases come to the Court courtesy of one of these firms."
Several former clerks tell Lithwick these megabonuses are not so wrong. The money gave them the freedom to pay off their loans and then teach or work for the government. But Justice Anthony M. Kennedy thinks otherwise. Last month, he told the Senate Judiciary Committee: "Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before."
Posted by Robert J. Ambrogi on March 12, 2007 at 02:54 PM | Permalink | Comments (0)
Sad Week for the Mass. High Court
News yesterday of the death of Martha B. Sosman, associate justice of the Massachusetts Supreme Judicial Court, at 56, was not entirely unanticipated. She had been diagnosed with breast cancer in 2005 and last year was so ill that she watched oral arguments from her home via Webcasts. Justice Sosman's death came just three days after the death of Edward F. Hennessey, the SJC's former chief justice and a member of the court from 1971 to 1989.
Justice Sosman's place in the history books may be marked by her role as dissenter in Goodridge v. Department of Health, the case that gave the green light to gay marriage in Massachusetts. In fact, a 2004 Boston Globe Magazine profile of her was titled, The Dissenter. That profile suggested that Sosman's position in Goodridge may leave her "on the wrong side of history." Maybe so, but she never lost the respect of lawyers in this state. The liberal Massachusetts blog Blue Mass. Group reflected the sentiment of many when it said yesterday, "We here at BMG may not have always agreed with her opinions. Nevertheless, the Commonwealth has lost a good citizen."
Of course, Justice Sosman's career was distinguished by much more than her role in one judicial opinion. After five years as a lawyer at Foley, Hoag & Eliot in Boston, she became an Assistant U.S. Attorney in 1984. In 1986, then-U.S. Attorney William Weld appointed her as chief of his office's civil division. She remained there until 1989, when she became a founding member of Boston's first all-woman law firm, Kern, Sosman, Hagerty, Roach & Carpenter. (Another founder of that firm, M. Ellen Carpenter, died in December at the age of 52.) In 1993, she was named to the Superior Court. When she joined the SJC in 2000, she gave it its first-ever female majority.
Said SJC Chief Justice Margaret Marshall yesterday: "Justice Sosman will be remembered as one of the great justices of the Supreme Judicial Court, despite her all too brief tenure on the court."
Posted by Robert J. Ambrogi on March 12, 2007 at 02:51 PM | Permalink | Comments (0)
Officials in Dark About Right-to-Know Law
This is Sunshine Week, a national campaign designed to focus attention on the importance of open government and freedom of information. To kick it off, a group of journalists and FOI advocates conducted a nationwide audit of public disclosure under one law -- one conveniently with the words "right-to-know" directly in the title: the Emergency Planning and Community Right-to-Know Act. Not surprisingly, more than half the time, the auditors found their right to know met with a refusal to disclose.
The law in question was enacted more than two decades ago, in the wake of the Bhopal chemical plant disaster. It requires every community to develop and make public a plan for action in cases of chemical or hazardous materials spills. But when reporters went to their local government officials and asked to see these Comprehensive Emergency Response Plans, they were met with an outright "no" more than a third of the time, and one in five provided only partial reports. Sometimes, their requests were even met with police action:
"In some cases, officials ran background checks on citizen auditors or sent police to follow them. The highway patrol in one state even launched an 88-county alert seeking more information about one requester."
Other requests resulted in demands for exorbitant copying and labor costs. One Maryland county demanded $1,714 -- with $1,200 paid up front.
To give credit where it is due, 44 percent of the agencies released the full report. Some had already posted it online. One Iowa official expressed delight at receiving the request, saying: "We need more awareness on what to do during an incident for the safety of everyone."
The full report is available through the Sunshine Week site.
Posted by Robert J. Ambrogi on March 12, 2007 at 02:47 PM | Permalink | Comments (0)
Libby Guilty? She Seemed Like a Good Dog
That was Matt Barr's reaction to the big legal news last week, as he writes in today's Blawg Review #99, hosted by the group blog Begging to Differ. He explains: "Though she lives with my ex-wife 700 miles away, Libby always seemed like a great dog." Even Barr concedes, though, that her photo sure makes her look like she's hiding something.
As for Barr, he digs up some bones of contention himself as he sifts through the week's best from the blawgosphere. And the libertarian-leaning Barr sprinkles it all with a liberal dose of Libby.
Posted by Robert J. Ambrogi on March 12, 2007 at 02:46 PM | Permalink | Comments (0)
