Memorandum
To: NCCUSL Drafting Committee for the Uniform
Collaborative Law Act
CC: Observers
From: Andrew Schepard
Re: Draft # 4 of the UCLA and Request for Comments
and Help
Date: February 20, 2008
Enclosed you will find Draft # 4 of the UCLA. I hope it captures the agreements made during our robust discussions at our January meeting.
Here is what I ask of you:
Review Draft # 4, and send comments via e mail by Friday, March 7th preferably tied to specific pages and lines of Draft # 4.
As we are not going to meet again before the first read of the Act, I would appreciate your placing your comments into one of the following categories:
Category 1- Typo, technical or suggestion that I, as reporter, have discretion to make or not.
Category2- Important change that must be incorporated for you to support the UCLA. I will discuss all changes that you put in this category with Peter and Harry to decide how best to proceed.
I plan to start work on the commentary while you are reviewing Draft # 4. I hope to circulate Draft #5 and draft commentary to you by approximately March 24th. A final version of the Act and commentary must be submitted to the Style Committee by April 21st to qualify for first read in July.
Context for your review of Draft # 4:
I did do substantial editing and rewriting of Draft # 3 in the interests of clarity and conciseness in incorporating the new provisions that we agreed to in January. I do not think my rewriting changed the substance of what we agreed on.
Nonetheless, I do want to especially draw your attention to the following features of Draft # 4:
(1) I added definitions of “law firm”, “substantially related” “and “tribunal”. These terms which were not defined in Draft # 3. These terms are, however, used repetitively in Draft #4 and I thought it prudent both to define them and to do so in the manner in which they are defined in existing professional responsibility rules. I took the definitions as close to verbatim as I could from identical terms as those in the text or commentary of the American Bar Association’s Model Rules of Professional Conduct.
(2) Note that the definition of “tribunal” includes quasi judicial legislative action, but not pure legislative action. I remember that the Committee voted to exclude legislative hearings from the privilege provisions of the statute. The distinction between legislation and quasi judicial legislative action is, however, a typical administrative law distinction, and is made in the ABA Model Rules for the definition of tribunal. Local legislative bodies, for example, often hold licensing proceedings that look a lot more like a trial than a legislative inquiry. I thought it helpful to include this definition in the interests of expanding the applicability of the statute beyond family law.
(3) I revised the definition of “matter.” The revised definition is very close to what we reviewed, but I expanded it a bit and tried to clarify the relationship of matter to a proceeding.
(4) I alphabetized the definitions, as required by NCCUSL drafting policy.
(5) I combined all disclosure, screening and informed consent requirements into a single section instead of the two separate sections that we discussed at the January meeting. This unified section includes the domestic violence sections we agreed to at the January meeting. I also moved the section later in the draft (to section 8). I did all this for several reasons.
a. Logical clarity and compactness of drafting.
b. NCCUSL drafting policy requires statutes to be drafted to “[a]void an organization [of a statute] that requires an understanding of a later section to understand an earlier section.” It seemed to me that a reader can’t understand what a lawyer has to disclose and advise the client of about collaborative law until the concept is defined in earlier sections.
c. Also, I thought that moving the most specific family law oriented sections (though I understand that DV is not limited to family law cases) to the end of the statute made the statute appear applicable to all fields of law.
(6) I revised and reordered section 6 on collaborative law in a pending proceeding as I think I was instructed at the last meeting. I also added a legislative note about enactment of that section by court rules if appropriate in a particular state.
(7) I created a special section on collaborative law for low income clients (section 9) that contains the provisions that I think we agreed upon at our January meeting.
(8) I added a legislative note recommending a long lead time before the statute takes effect.
Thank you for all of your help, advice and encouragement. I think we are making good progress, which would not be possible without you. I look forward to your suggestions and comments on Draft # 4.