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![handle is hein.nccusl/nccpub01104 and id is 1 raw text is: Memorandum
To: Prof. Andrew Schepard
From: Angela Burton
Re: Mutual Rescission of the Disqualification Requirement
Date: October 22, 2008.
I. Issue Presented
The Collaborative Law Act (Second Proposed Draft 2008) (hereinafter, CLA)
makes the disqualification requirement a feature of positive law and is automatically
applicable if collaborative law terminates. CLA § 3(b)(1)(B)(7). May parties mutually
rescind the disqualification provision of the collaborative law participation agreement,
and are there any policy arguments to consider in favor or against the right to rescind the
disqualification requirement?
II. Short Answer
There is no absolute right to mutual rescission in contract law, as parties may
forfeit it in the terms of the agreement. The CLA states that parties cannot agree to
waive the provisions of [the section which defines collaborative law participation
agreements and the disqualification requirement] and participate in collaborative law.
CLA §§ 3(c)-(e). Furthermore, because disqualification of attorneys when the
collaborative process terminates is such a fundamental characteristic of collaborative law,
providing the incentive for good faith negotiation and protecting the integrity of the open
communication process, a court might hold that it would be against public policy to allow
parties to rescind the disqualification provision even if they could.
Combined Issues Memos: Page 1](ViewImageLocal?handle=hein.nccusl/nccpub01104&div=1&collection=&method=preview&ext=.png&size=3)