Rule 1-128.6.Disqualification of collaborative lawyer and lawyers in associated law firm

Disqualification of the collaborative lawyer from participation in subsequent adjudicative proceedings in the same matter, according to the Uniform Law Commission, “is a fundamental defining characteristic of collaborative law.” Unif. Collab. Law R. 9 cmt. (Unif. Law Comm’n 2010). Requiring disqualification gives the parties and their collaborative lawyers a unique incentive to reach an acceptable settlement within the collaborative process. See Pauline H. Tesler, Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, 12 (2d ed. 2009) (“Unlike any other kind of family law representation, the risk of failure is distributed to the lawyers as well as to the clients in collaborative law.”). The disqualification requirement also results in a much greater level of comfort, candor, and trust for many collaborative participants because there is no risk, for example, of being cross-examined in court by the other party’s collaborative lawyer. See David Hoffman, Foreword to the Second Edition of Tesler, supra, at xvii (“Because the parties do not have to fear that they will one day face the other party’s lawyer in adversarial proceedings in court, they are able to achieve deeper levels of communication and resolution.”).