JDs Rising

By Kellie Bigham

Two messages stand out in my mind from the bar swearing-in ceremony last month:

First, the “It’s not you, it’s the economy…I swear” subterfuge. (Did the Supreme Court just break up with me?)

And second, the Chief Justice’s call to arms, for peace. Her honor quoted Abraham Lincoln in urging us to: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.”

This quote is also a common battle cry for alternative dispute resolution proponents. In short, ADR has become an esteemed and growing area of law over the past few decades by making available means outside of the formal court process to solve disputes.

One form of ADR that originated here in Minnesota and is now practiced by more than 20,000 lawyers worldwide is Collaborative Law, also known as Collaborative practice.  Like other forms of ADR, Collaborative practice aims to minimize conflict and costs—both emotional and financial—to the clients, to encourage creative problem-solving solutions, and to promote client control of the process. Almost always used to settle family law disputes, the Collaborative process requires the attorneys and clients to sign a formal agreement that they will not take the case to court (unless the clients retain new counsel).

For some, this notion of bypassing court causes alarm.  How is it possible to be an effective and ethical attorney while “discouraging litigation” or in the case of Collaborative practice, refusing to go to court all together?

While not a cut-and-dry issue, it appears safe to say that the “zealous advocacy” standard has gone into semi-retirement after more than two hundred years of being required by Canon 7 of the ABA Model Code of Professional Responsibility. Therefore, fighting to win for clients at all costs, professionalism and morals included, appears to be a thing of the past. In fact, when the Model Rules of Professional Conduct were established in the early 1980s, the requirement of “zeal” was demoted to merely a comment in Rule 1.3.

Yes, advocating for clients is undoubtedly still a vital characteristic of lawyering, but there are other duties that are arguably just as important. The duties to be an advisor, negotiator and evaluator are all recognized in the Preface to the Minnesota Rules of Professional Conduct and are fundamental to the role of a Collaborative attorney.

Still not convinced the disqualification requirement is ethical? Collaborative practice hangs its hat on Rule 1.2(c) of the Minnesota Rules of Professional Conduct, which allows for reasonable limited scope representation if clients give informed consent. Of late, there does not appear to be any complaints against Collaborative attorneys brought before the Lawyers Professional Responsibility Board.

Regardless of your view of the ethicality of Collaborative practice, what is fundamental is that we, as rising J.D.s, embrace the changing role of attorneys. By accepting the call to be problem solvers, not problem instigators and by promoting peace and more sustainable agreements for our clients, we gain the superior opportunity to be good men, women, and lawyers.