I just received word from a colleague that the Colorado Bar Association Ethics Committee has issued a formal opinion that the practice of Collaborative Law with the inclusion of the typical disqualification agreement is per se unethical, in violation of Rule 1.7 b of the Rules of Professional Conduct, and that a client cannot validly consent to the withdrawal of his/her lawyer in the event the matter goes to court.
Note (added March 7, 2007, 7:45 Mountain): Still more from Crouch's blog in his post "Critique of Colorado Ethics Opinion on Collaborative Law." He begins:
I've now read through the Ethics Opinion, responding as I went. You can click on the link below for the full critique including quotes of key passages and my responses to them.
Basically, it approves of Collaborative Law so long as people who are having lawyers sign the Participation Agreements stop doing that, and change over to agreements signed only by the parties. In doing so, however, it makes many disturbing arguments that are dismissive of clients' autonomy, their key roles in their own cases, and their freedom of contract. And it very inaccurately portrays some aspects of what actually happens in collaborative cases.
Half of the Opinion is about another practice called "Cooperative Law," but that part actually has a lot of helpful advice about many of the distinctive things we do in Collaborative practice.
Plus an article by Gini Nelson on Collaborative Law and her post "Colorado Ethics Committee Concludes Collaborative Law Per Se Unethical, Cooperative Law Not."
Note (added March 10, 2007, 9:25 AM Mountain): Commentary from Professor Alan Childress in his post "Lawyer Agreement to 'Collaborative Law' Found Unethical Per Se In Colorado" at Legal Profession Blog.
Note (added March 15, 2007, 1:35 PM Mountain): More at Online Guide to Mediation.