DRAFT
FOR DISCUSSION ONLY
UNIFORM COLLABORATIVE
LAW ACT
_______________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
December 8, 2008 Interim Draft
WITHOUT PREFATORY NOTE OR COMMENTS
Copyright © 2008
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and
conclusions set forth in this draft, including the proposed statutory language
and any comments or reporter’s notes, have not been passed upon by the National
Conference of Commissioners on
December 8, 2008
DRAFTING COMMITTEE ON UNIFORM COLLABORATIVE LAW ACT
The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in drafting this Act consists of the following individuals:
Peter K. Munson,
Robert G. Bailey, University of Missouri-Columbia, 217 Hulston Hall, Columbia, MO 65211
Michael A. Ferry,
200 N. Broadway,
Elizabeth Kent,
Center for Alternative Dispute Resolution,
Byron D. Sher,
Harry L. Tindall,
Andrew Schepard, Hofstra University School of Law, 121 Hofstra University, Hempstead, NY 11549-1210, Reporter°
EX OFFICIO
Martha Lee Walters,
President
Jack Davies,
AMERICAN BAR
ASSOCIATION ADVISOR
Charla Bizios Stevens, 900 Elm St., P.O. Box 326, Manchester, NH, 03105-0326, ABA Section Advisor
Gretchen Walther,
EXECUTIVE DIRECTOR
John A. Sebert,
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
312/450-6600
UNIFORM
COLLABORATIVE LAW ACT
TABLE OF CONTENTS
SECTION 3.
COLLABORATIVE LAW PARTICIPATION AGREEMENT
REQUIREMENTS
SECTION 4.
BEGINNING AND TERMINATING A COLLABORATIVE LAW PROCESS.
SECTION 5.
COLLABORATIVE LAW PROCESS AND PROCEEDINGS.
Section 6.
Disqualification of collaborative lawyer and
lawyers in collaborative lawyer’s law firm.
SECTION 7.
DISCLOSURE OF INFORMATION IN THE COLLABORATIVE
LAW PROCESS
SECTION 8.
DISCLOSURES CONCERNING AND APPROPRIATENESS OF COLLABORATIVE LAW PROCESS.
SECTION 9.
COLLABORATIVE LAW PROCESS AND LOW INCOME PARTIES
SECTION 10.
COLLABORATIVE LAW PROCESS AND GOVERNMENT
ENTITIES AS PARTIES
SECTION 11. CONFIDENTIALITY
OF COLLABORATIVE LAW COMMUNICATION
Section 13. waiver
and preclusion of privilege.
Section 14.
exceptions to privilege.
SECTION 15.
COLLABORATIVE LAW PARTICIPATION AGREEMENTS NOT
MEETING REQUIREMENTS
SECTION 17.
UNIFORMITY OF APPLICATION AND CONSTRUCTION.
SECTION 18.
RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.
SECTION 19.
SEVERABILITY CLAUSE
SECTION 20.
APPLICATION TO EXISTING AGREEMENTS
UNiform
Collaborative law act
SECTION
1. SHORT TITLE. This [act] may be cited as the Uniform Collaborative
Law Act.
SECTION 2. DEFINITIONS. In
this [act]:
(1) A “collaborative law process” means an attempt by parties who have voluntarily entered into a collaborative law participation agreement and are represented by collaborative lawyers to resolve a matter without the intervention of a tribunal.
(2) “Collaborative law communication” means a statement, whether oral or in a record or verbal or nonverbal, that:
(A) occurs between the time the parties enter into a collaborative law participation agreement and the time when the parties have a reasonable belief that a collaborative law process is terminated or is concluded by negotiated resolution of a matter; and
(B) is made for the purposes of conducting, participating in, continuing, or reconvening a collaborative law process.
(3) “Collaborative law participation agreement” means an agreement by persons to participate in a collaborative law process to attempt to resolve a matter.
(4) “Collaborative lawyer” means a lawyer identified in a collaborative law participation agreement as engaged to represent a party in a collaborative law process and who is disqualified from representing a party in the matter and a substantially related matters under section 6 if the collaborative law process terminates.
(5) “Law firm” means lawyers who practice together in a partnership, professional corporation, sole proprietorship, limited liability corporation, or other association authorized to practice law or lawyers employed in a legal services organization or the legal department of a corporation or other organization.
(6) “Matter” means a dispute, transaction, claim, problem or issue for resolution as described in a collaborative law participation agreement. The term includes a claim, issue, or dispute in a proceeding.
(7) “Nonparty participant” means a person, other than a party and the party’s collaborative lawyer, that participates in a collaborative law process.
(8) “Party” means a person that enters into a collaborative law participation agreement and whose consent is necessary to resolve the matter.
(9) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(10) “Proceeding” means a judicial, administrative, arbitral, legislative or other adjudicative process before a tribunal, including related pre-hearing and post-hearing motions, conferences, and discovery.
(11) “Prospective party” means a person who discusses the possibility of entering into a collaborative law participation agreement with a potential collaborative lawyer.
(12) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(13) “Sign” means, with present intent to authenticate or adopt a record:
(A) to execute or adopt a tangible symbol; or
(B) to attach to or logically associate with the record an electronic symbol, sound or process.
(14) “Substantially related matter” means a matter involving the same transaction or occurrence, nucleus of operative fact, claim, issue, or dispute as another matter.
(15) “Tribunal” means a court, an arbitrator, or a legislative body, administrative agency, or other body acting in an adjudicative capacity in which a neutral official, after presentation of evidence or legal argument, renders a binding decision directly affecting a party’s interests in a matter.
SECTION
3. COLLABORATIVE LAW PARTICIPATION
AGREEMENT REQUIREMENTS.
(a) A collaborative law participation agreement must:
(1) be in a record;
(2) be signed by the parties;
(3) describe the nature and scope of a matter;
(4) state the parties’ intention to attempt to resolve the matter through a collaborative law process;
(5) identify the collaborative lawyer engaged by each party to represent the party in the collaborative law process; and
(6) contain a signed acknowledgment by each party’s collaborative lawyer confirming the lawyer’s engagement.
(b) Parties to a collaborative law participation agreement:
(1) may agree to include additional provisions not inconsistent with the provisions of this act; and
(2) may not agree to waive or vary the effect of the requirements of this act.
(a) A collaborative law process begins when parties sign a collaborative law participation agreement.
(b) A party may unilaterally terminate a collaborative law process with or without cause.
(c) A collaborative law process terminates when all parties have a reasonable belief that the process is over because:
(1) a party:
(A) terminates the process;
(B) begins a
proceeding substantially related to the matter without the agreement of all
other parties;
(C) begins a pleading, motion, order to show cause, request for a conference with the tribunal, request that the proceeding be put on a tribunal’s active calendar or takes similar action in a pending proceeding substantially related to the matter without the agreement of all other parties; or
(D) discharges a collaborative lawyer; or
(2) a collaborative lawyer withdraws from further representation of a party.
(d) The collaborative lawyer for a party that terminates a collaborative law process or a collaborative lawyer who withdraws from further representation of a party shall provide prompt written notice of the termination of the process to all other parties and collaborative lawyers. The notice need not specify a reason for terminating the process.
(e) Notwithstanding the discharge or withdrawal of a collaborative lawyer, a collaborative law process continues without termination if within 30 days of the date written notice of termination is received by the parties:
(1) the unrepresented party engages a successor collaborative lawyer;
(2) all parties consent to continuation of process by reaffirming the collaborative law participation agreement in a signed record;
(3) the collaborative law participation agreement is amended to identify the successor collaborative lawyer in a signed record; and
(4) the successor collaborative lawyer acknowledges the engagement in a signed record.
(f) A party that begins a proceeding or files a motion under section 5(a) with the agreement of all other parties does not terminate a collaborative law process.
(g) A collaborative law participation agreement may provide additional methods of terminating a collaborative law process.
SECTION 5. COLLABORATIVE LAW PROCESS AND PROCEEDINGS.
(a) Parties may agree that a party can begin a proceeding or file a motion in a pending proceeding to ask a tribunal to approve a settlement agreement or sign orders to effectuate a settlement agreement resulting from a collaborative law process. The party designated to begin the proceeding or file the motion shall file a notice of collaborative law process signed by all parties and collaborative lawyers with the tribunal at the time the proceeding begins or the motion is filed.
(b) Parties to a pending proceeding which a party began without the agreement of all parties may sign a collaborative law participation agreement to resolve any matter substantially related to the proceeding. They shall file a notice of collaborative law process signed by all parties and collaborative lawyers promptly with the tribunal after the collaborative law participation agreement is signed.
(c) The filing of a notice of collaborative law process with a tribunal shall operate as an automatic stay of the proceeding until the tribunal receives written notice from the parties and collaborative lawyers that the collaborative law process is terminated. Nothing in this section prohibits a tribunal from requiring periodic status reports from parties and collaborative lawyers.
(d) Notwithstanding the filing of a notice of a collaborative law process, a tribunal may issue emergency orders to protect the health, safety, welfare or interests of a party or family or household member as defined in [the state civil protection order statute].
(e) After a notice of a collaborative
law process is filed, unless all parties otherwise agree, a collaborative
lawyer and the collaborative lawyer’s law firm may not appear before a tribunal
to represent a party in a proceeding substantially related to the matter except to seek an emergency order to protect
the health, safety, welfare or interests of a party or family or household member as defined in [the state civil protection
order statute].
(f) Upon request of all parties, a tribunal may approve a settlement agreement and sign orders to effectuate a settlement agreement resulting from a collaborative law process.
(g) Parties and collaborative lawyers shall promptly notify the tribunal in writing when a collaborative law process terminates. The notice of termination must specify the date on which the collaborative law process terminates, but shall not specify any reason for the termination. Upon filing of the notice of termination, the automatic stay of proceedings authorized by subsection (c) terminates.
(h) A tribunal shall not dismiss a proceeding in which a notice of a collaborative law process is filed based on failure to prosecute or delay without providing parties and collaborative lawyers appropriate notice and an opportunity to be heard.
Legislative
Note: In states
where judicial procedures for management of proceedings can be prescribed only
by court rule or administrative guideline and not by legislative act, the
duties of courts and other tribunals listed in this section should be adopted
by the appropriate measure.
Section 6. Disqualification of collaborative lawyer and
lawyers in collaborative lawyer’s law firm.
(a) Except as otherwise provided in subsection (c), a collaborative lawyer is disqualified from representing a party in the matter or any substantially related matter if a collaborative law process terminates.
(b) A lawyer in a law firm with which the collaborative lawyer is associated shall not knowingly represent a party in the matter or a substantially related matter if the collaborative lawyer is disqualified from doing so by subsection (a).
(c) Notwithstanding subsections (a)
and (b), a collaborative lawyer or a lawyer in a collaborative lawyer’s law
firm may represent a party to seek emergency orders to protect the health,
safety, welfare or interests of a party or family or household member as defined in [the state civil protection
order statute] if successor counsel is not immediately available to represent
the threatened party. In that event, the provisions of subsections (a) and (b)
take effect when the party engages a successor lawyer or reasonable measures
are taken to adequately protect the health, safety, welfare or interests
of a party or family or household
member.
(d) A tribunal may enforce this section through entry of appropriate orders.
SECTION 7. DISCLOSURE OF INFORMATION IN THE COLLABORATIVE LAW PROCESS. During a collaborative law process a party shall make timely, full, candid, and informal disclosure of information reasonably related to the matter upon request of a party, but without formal discovery, and shall promptly update information which has materially changed.
(a) Before a prospective party executes a collaborative law participation agreement, a prospective collaborative lawyer shall:
(1) provide the prospective party with sufficient information to make an informed decision about the material benefits and risks of a collaborative law process as compared to the material benefits and risks of other reasonably available alternatives for resolving the matter such as litigation, mediation, arbitration, or expert evaluation;
(2) advise the prospective party that:
(A) a party
may not initiate a proceeding or seek tribunal intervention in a pending
proceeding substantially related to the matter until the collaborative law
process terminates except to seek
an emergency order to protect the health, safety, welfare or interests of a party
or family or household member as
defined in [the state civil protection order statute];
(B) any party has the right to unilaterally terminate a collaborative law process with or without cause;
(C) if a collaborative law process terminates, a collaborative lawyer and the lawyers in a collaborative lawyer’s law firm are disqualified from further representation of a party in the matter or substantially related matters pursuant to section 6 and,
(D) if appropriate for the prospective party, the exceptions to the disqualification requirement allowing continued representation by a lawyer in the collaborative lawyer’s law firm described in sections 9 and 10.
(3) inquire about and discuss with the prospective party factors relevant to whether a collaborative law process is appropriate for the prospective party’s matter.
(b) A collaborative lawyer shall make reasonable efforts to determine whether a prospective party has a history of domestic violence with another prospective party before a prospective party signs a collaborative law participation agreement and shall continue throughout the collaborative law process to assess for the presence of domestic violence.
(c) If a collaborative lawyer reasonably believes that a
prospective party or party has a history of domestic violence with another
prospective party, the collaborative lawyer shall not
begin or continue a collaborative law process unless:
(1)
the prospective party or party requests beginning or continuing a collaborative
law process;
(2)
the lawyer reasonably believes that the prospective party or party’s safety can
be adequately protected during a collaborative law process; and
(3)
the lawyer is familiar with the American Bar Association’s Standards of
Practice for Representing Victims of Domestic Violence, Sexual Assault and
Stalking in Civil Protection Order Cases; for Lawyers Who Represent Children in
Abuse and Neglect Cases and for Lawyers
Who Represent Parents in Abuse and Neglect Cases. [A2]
SECTION 9. COLLABORATIVE
LAW PROCESS AND LOW INCOME PARTIES.
(a) This section is applicable to a collaborative law participation agreement where one of the parties has an annual income which does not exceed one hundred and twenty five percent (125%) of the current Federal Poverty Guidelines amounts.
Legislative
Note: States should
modify the above description of the scope of this section as appropriate to
include their own definition of low income clients who are eligible for free
legal representation by legal aid societies in civil matters.
(b) The disqualification
requirements of subsections 6 (a) and (c) are applicable to the collaborative
lawyer for a party described in subsection (a).
(c) Notwithstanding subsection 6 (b), after a collaborative law process terminates a lawyer in a law firm with which the collaborative lawyer is associated may represent a party described in subsection (a) in the matter or a substantially related matter if:
(1) the collaborative law participation agreement so provides; and
(2) the collaborative lawyer is isolated from any participation in the matter or substantially related matters through the timely imposition of procedures within the law firm that are reasonably adequate under the circumstances for the intended purpose.
(d) A tribunal may enforce this section through entry of appropriate orders.
SECTION
10. COLLABORATIVE LAW PROCESS AND GOVERNMENT
ENTITIES AS PARTIES
(a) This section is applicable to a
collaborative law participation agreement when one of the parties is a public
corporation, government or governmental subdivision, agency, or
instrumentality.
(b) The disqualification requirements of subsections 6 (a) and (c) are applicable to the collaborative lawyer for a party described in subsection (a).
(c) Notwithstanding subsection 6 (b), after a collaborative law process terminates, a lawyer in a law firm[A3] with which the collaborative lawyer is associated may represent a party described in subsection (a) in the matter or a substantially related matter if:
(1) the collaborative law participation agreement so provides; and
(2) the collaborative lawyer is isolated from any participation in the matter or substantially related matters through the timely imposition of procedures within the law firm[A4] that are reasonably adequate under the circumstances for the intended purpose.
(d) A tribunal may enforce this section through entry of appropriate orders.
SECTION 11. CONFIDENTIALITY OF COLLABORATIVE LAW COMMUNICATION. A collaborative law communication is confidential to the extent agreed by the parties in a signed record or as provided by law or rule of this state other than this [act].
Section 12.
Privilege against disclosure for collaborative law communications; admissibility; discovery.
(a) Except as otherwise provided in section 14, a collaborative law communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless the privilege is waived or precluded as provided by section 13.
(b) In a proceeding, the following privileges apply:
(1) A party may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication.
(2) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication of the nonparty participant.
(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a collaborative law process.
Section 13. waiver and preclusion of privilege.
(a) A privilege under section 12 may be waived in a record or orally during a proceeding if it is expressly waived by all parties and, in the case of the privilege of a nonparty participant, it is also expressly waived by the nonparty participant.
(b) A person that discloses or makes a representation about a collaborative law communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 12, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
(c) A person that intentionally uses a collaborative law process to commit, or attempt to commit, or to plan a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under section 12.
Section 14. exceptions to privilege.
(a) There is no privilege under Section 12 for a collaborative law communication that is:
(1) in an agreement evidenced by a record signed by all parties;
(2) available to the public under [insert statutory reference to open records act] or made during a session of a collaborative law process which is open, or is required by law to be open, to the public;
(3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(4) intentionally used to plan a crime, attempt to commit or commit a crime, or conceal an ongoing crime or ongoing criminal activity;
(5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or related to collaborative law;
(6) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the [State to insert, for example, child or adult protective services agency] is a party to or otherwise participates in a collaborative law process; or
(7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which the abuse or neglect of a child or is an issue
(b) There is no privilege under section 12 if a tribunal finds, after a hearing in camera, that: the party seeking discovery or the proponent of the evidence has shown the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting confidentiality, and the collaborative law communication is sought or offered in:
(1) a court proceeding involving a felony [or misdemeanor]; or
(2) a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the collaborative law process.
(c) If a collaborative law communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted.
(d) Admission of evidence under subsection (a) or (b) does not render the evidence, or any other collaborative law communication, discoverable or admissible for any other purpose.
(e) If the parties agree in advance in a signed record, or if a record of a proceeding reflects agreement by the parties, that all or part of a collaborative law process is not privileged, the privileges under section 12 do not apply to the collaborative law process or the part thereof to which the agreement to waive the privilege applies. However, section 12 applies to a collaborative law communication made by a person that has not received actual notice of the agreement before the communication is made.
SECTION
15. COLLABORATIVE LAW PARTICIPATION
AGREEMENTS NOT MEETING REQUIREMENTS. Notwithstanding the failure of a collaborative law
participation agreement to meet the requirements of section 3 other than section
3(a)(1) and (a)(4), or a lawyer’s failure to
comply with the disclosure requirements of section 8, if a tribunal finds that the parties intended to enter into a
collaborative law participation agreement, that they reasonably believed they
were participating in a collaborative law process, and that the interests of
justice require, the tribunal may:
(1)
enforce an agreement resulting from the process in which the parties
participated;
(2) apply
the disqualification provisions of sections 6, 9 or 10; or
(3)
apply the evidentiary privilege of section 12.
SECTION
16. STANDARDS OF PROFESSIONAL
RESPONSIBILITY AND MANDATORY REPORTING AND COLLABORATIVE LAW PROCESS.
(a) The professional responsibility obligations and standards of a collaborative lawyer are not changed because of the lawyer’s engagement to represent a party in a collaborative law process.
(b) The professional responsibility obligations and standards applicable to any licensed professional who participates in a collaborative law process as a nonparty participant are not changed because of that participation.
(c) The obligations of any person to report abuse or neglect of a child under the laws of this state are not changed by a person’s participation in a collaborative law process.
SECTION 17. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 18. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et. seq., but does not modify, limit, or supersede Section 101 (c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
SECTION 19. SEVERABILITY CLAUSE. If any provision of this [act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [act] which can be given effect without the invalid provision or application, and to this end the provisions of this [act] are severable.
SECTION 20. APPLICATION TO EXISTING AGREEMENTS. This [act] governs a collaborative law participation agreement signed after [the effective date of this [act]].
SECTION 21. EFFECTIVE DATE. This [act] takes effect....................
Legislative Note: States should choose an effective date for
the act that allows substantial time for notice to the bar and the public of
its provisions and for the training of collaborative lawyers.
° Professor Schepard thanks Yishai Boyarkin,
Hofstra Law School LL.M. candidate class of 2010, Elizabeth Bruzzo and Rebecca
Miller, Hofstra Law School class of 2007; Laura Daly, Hofstra Law School class
of 2008; Angela Burton, Jesse Lubin, Joshua Reiger, and Brittany
Shrader, Hofstra Law School class of 2009, and Mary Ann Harvey and Ashley
Lorance, Hofstra Law School class of 2011,
for their invaluable and ongoing research assistance.
[A1]They didn’t like “Informed Client Consent to Collaborative Law and Lawyers Duty to Screen for Domestic Violence’. This was the best I could do. If you have a better idea, let me know. This section was the subject of very intense negotiation at earlier meetings, which I do not want to reopen if at all possible.
[A2]That’s right- abuse and neglect and DV are interrelated. In many states, lawyers have to report child abuse, but in some states they don’t. That’s another issue I do not want to raise if we can avoid doing so.
[A3]The original is right. See the draft cover memo
[A4]Should be left the way it is. See draft cover memo on this section.