It describes his personal journey from a hippie seeking social justice to lawyer who sometimes litigated to full-time peacemaker practicing mediation and collaborative law (CL). It is an inspiring talk, great for law students, lawyers, other DR professionals, and civilians alike.
I had the good fortune to know David when we both served on the Council of the ABA Section of Dispute Resolution, including when he chaired the Section.
I was particularly fortunate to have a series of long Sunday morning conversations with him to talk through our perspectives on CL.
In 2002, I started studying CL for a law review article, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering.
Like many people, my first question was whether CL was inconsistent with a supposed duty of zealous advocacy (now referred to as a duty of diligence). After a little research, I quickly concluded that lawyers who practice CL do not inherently violate this duty (though they, like other lawyers, could violate it in particular situations).
As I learned more about CL, I became intrigued about the disqualification provision of CL agreements, which precludes lawyers who represent clients in CL from doing so in contested litigation of those matters. This provision provides an incentive to cooperate and settle, which normally is good.
But I also worried that it could create perverse incentives and be used to coerce parties. Indeed, I speculated that this provision might be considered to violate lawyers’ ethical rules regarding withdrawal from representation. There wasn’t much legal authority directly on point and my article described arguments why the disqualification agreement might or might not violate this rule.
I ultimately argued that CL should be permitted unless there was evidence of significant harm resulting from the process.
Although CL was created in 1990, there was very little activity in the field until about 2000. So when I wrote my article, it was a very early point in the development of the field when there were no ethical opinions about it.
I circulated a draft of my article to various people in the CL field and most collaborative lawyers were none too happy about it, to say the least. They worried that my article might stimulate adverse ethical opinions, strangling this promising area of practice “in the cradle.” Feelings about me and my article were quite intense.
This was the context of my Sunday morning conversations with David. He was so busy that this was one of the few times he had time to talk.
David is a wonderful combination of passion and reason. Indeed, he is a real mensch.
Our conversations covered a very wide range of things, including personal experiences not related to CL at all. By the end, we had a much deeper appreciation of each other’s perspectives about CL and greater respect for each other.
I ended up publishing the article with some changes inspired by our conversations. I later wrote an article summarizing empirical research on CL, indicating that it generally works well, and also identifying areas for improvement.
One reason that CL works as well as it does is because of people like David Hoffman and our mutual friend, Woody Mosten, who has long promoted the idea of lawyers as peacemakers. Those interested might want to read Kim Wright’s book published by the ABA, Lawyers as Peacemakers.
I heartily recommend that you watch David’s TED talk. He describes some cases, including one which prompted him to tear up with emotion. I choked up watching him because he embodies my ideals and probably yours too.