parties and counsel contractually bind themselves to pursue non-adversarial resolution of their differences. This means that if the collaborative process breaks down, both attorneys must with- draw, for they have agreed that they will not pursue contested litigation. More traditional family law practitio-


ners muse that they do collaborative law all the time. They talk to the other attor- neys. They exchange documents. They negotiate. Being old-fashioned litigators, however, they reserve the right to file suit, propound extensive discovery and preserve their client’s day in court. Some family law attorneys feel restricted by a process that would bar them from the courthouse, and they now have support for their position in the form of Ethics Opinion 115: Ethical Considerations in


25


As set forth in the Opinion, “Formal Ethics Opinions are for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regula- tion Committee, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.”


the Collaborative and Cooperative Law Contexts, 02/24/07, out of Colorado.25 Essentially, the Colorado Ethics Com-


mittee concludes that collaborative law runs afoul of Rule 1.7 (b) of the Colorado Rule of Professional Conduct, Conflict of Interest, General Rule, which provides in pertinent part:


A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to . . . a third person . . . unless:


(1) the lawyer reasonable believes the representation will not be ad- versely affected; and


(2) the client consents after con- sultation.26


The committee notes that collabora-


tive law “involves an agreement between the lawyer and a ‘third person’ (i.e., the


26


Colorado’s Rules of Professional Conduct are substantially identical to Maryland Rule 16-812, the Maryland Lawyers’ Rules of Professional Conduct.


opposing party) whereby the lawyer agrees to impair his or her ability to represent the client.” Furthermore, the client may not consent to this conflict for several reasons. First, the commit- tee concludes that the possibility that a conflict will materialize is significant in the collaborative law setting. Second, “the potential conflict inevitably in- terferes with the lawyer’s independent professional judgment in considering the alternative of litigation in a material way.” Litigation that may be reasonably pursued on behalf of a client “is fore- closed to the [collaborative] lawyer.” This is, of course, the non-binding


opinion of the Colorado Ethics Com- mittee. It remains to be seen whether Maryland will adopt a similar approach. Certainly, there is room to conclude that a client has the right to consent to collaborative representation after all the alternatives are considered. At a minimum, the collaborative lawyer is forewarned to explore these conflict issues thoroughly and craft an explicit engagement agreement with his or her client before deciding to attempt a col- laborative resolution of custody and other marital issues.


Conaway v. Deane and the Prospects for Marriage Equality


A Baltimore City trial judge received


national attention after her January 2006 ruling that the statute permitting only those marriages that are “between a man and a woman,”27


unconstitution-


ally discriminated on the basis of gender, and was thus in violation of Article 46 (Maryland’s Equal Rights Amendment) of the Maryland’s Declaration of Rights. The court compared Maryland’s ban on marriage between gays and lesbians to anti-miscegenation laws which were not repealed until 1967. The court next addressed each of the state’s as- serted reasons for restricting marriage


(Continued on page 16) 27 MD. CODE ANN., FAM. LAW ART., § 2-201. 14 Trial Reporter Winter 2008


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