The proposal would expressly allow divorcing couples to work with lawyers on a limited-scope basis to try to reach a settlement and avoid litigation.

In October, the ISBA Board of Governors approved a proposal to support legislation and a new Rule of Professional Conduct that would expressly allow collaborative law in family law settings. The Assembly approved the proposal at its December meeting. Collaborative law is a process whereby attorneys work with parties to a divorce to reach a settlement and, ideally, avoid expensive and contentious litigation.

In 2013, Senate Bill 31 was introduced in the Illinois General Assembly. It was an attempt to adopt the Collaborative Law Act as drafted by the Uniform Law Commission. The bill failed. The ISBA formally opposed SB 31 primarily due to separation of powers issues - the bill had components that would regulate the practice of law, which is the province of the supreme court, not the legislature.

Past President Umberto Davi appointed a committee to revisit the issue. The group drafted a proposed statute and an amendment to the Rules of Professional Conduct that would allow collaborative law in a family law setting, but without triggering the separation of powers issue that prompted the ISBA to oppose the previous bill.

Cautions and concerns

However, not every ISBA section council and committee supports the proposed legislation. In particular, the Civil Practice Section Council voiced its opposition. Collaborative law typically requires the parties and lawyers to sign an agreement that requires the lawyers to withdraw if the case goes to litigation.

The council's concern is that this provision could deprive the client of the right to have his or her attorney of choice handle the case if it goes to litigation. Additionally, it would add costs to hire a new attorney who would need to spend time getting up to speed on the case.

Committee member Anna Krolikowska notes that no process is perfect for all circumstances. However, she says that the collaborative law approach provides flexibility, allowing parties to tailor a solution that is unique to the needs of the family.

Krolikowska, who is a partner at K & R Family Legal Services, LLP, says that collaborative process is used in 16 jurisdictions. She believes that it is a useful tool for family law attorneys because it provides another option for resolving the dissolution of a marriage amicably. She is a "firm believer" that a family law attorney should educate their potential client about all available options.

In response to the Civil Practice Section's concerns, she points out that engaging in collaborative process is a "client's informed choice." Under the proposed Act and Rules, an attorney who is hired for a collaborative process dissolution enters into a limited scope representation retainer with the client. The representation is for settlement purposes only.

Collaborative law isn't mediation

Collaborative process is different than mediation. In mediation, an attorney is hired as a neutral third party. The mediator cannot give either party legal advice. Parties to mediation will likely need to hire counsel to review any written agreements, but they do not have the advice of counsel during the mediation itself.

In a collaborative proceeding, parties have the advice of their counsel throughout the process. Another difference from mediation is that the parties agree to engage in an open exchange of information. Section 40 of the proposed Act describes this disclosure as "a defining characteristic of the collaborative process." The disclosures are to be done in lieu of formal discovery. Their scope can be defined by the collaborative process agreement.

Similarly, communications made during a collaborative proceeding may be designated as privileged. The proposed legislation describes which communications are privileged by default. The parties may elect to expand or contract the scope of the privilege in the agreement. This level of customization is a key element of the statute. It allows parties to set the ground rules in advance.

The proposed new Rule of Professional Conduct 2.5 is designed to avoid the separation of power issue that the 2013 legislation presented. It requires that collaborative process agreements be signed with the informed consent of the parties. It prohibits lawyers involved in a collaborative proceeding from appearing before a tribunal unless it is to comply with procedural rules necessary to facilitate the process, to seek approval of an agreement arising from the process, or to seek or defend a petition for an emergency order related to the health, safety, welfare, or interest of a party or other person eligible for protection (such as a minor child).

The comments to the rule point out that when an attorney is discharged from a collaborative process proceeding, that lawyer's entire law firm is discharged - another attorney from the same firm may not represent the party in litigation. This restriction cannot be waived and traditional screening methods are not applicable.