COLLABORATIVE LAW ACT

DRAFT

FOR DISCUSSION ONLY

COLLABORATIVE LAW ACT

_______________________________________________

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

________________________________________________

For January 18-19, 2008 Drafting Committee Meeting

WITHOUT PREFATORY NOTE OR COMMENTS

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 Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.

January 2, 2008

DRAFTING COMMITTEE ON 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, 123 S. Travis St., Sherman, TX 75090, Chair

Annette Appell, University of Nevada Las Vegas, 4505 Maryland Pkwy., Box 451003,

Las Vegas, NV 89154-1003

Robert G. Bailey, University of Missouri-Columbia, 217 Hulston Hall, Columbia, MO

65211

Michael A. Ferry, 200 N. Broadway, Suite 950, St. Louis, MO 63102

Elizabeth Kent, Center for Alternative Dispute Resolution, 417 S. King St., Room 207,

Honolulu, HI 96813

Byron D. Sher, 1000 Fruitridge Rd., Placerville, CA 95667

Harry L. Tindall, 1300 Post Oak Blvd., Suite 1550, Houston, TX 77056-3081

Cam Ward, 124 Newgate Rd., Alabaster, AL 35007

Andrew Schepard, Hofstra University School of Law, 121 Hofstra University, Hempstead,

NY 11549-1210, Reporter°

EX OFFICIO

Martha Lee Walters, Oregon Supreme Court, 1163 State St., Salem, OR 97301-2563,

President

Jack Davies, 1201 Yale Place, Unit #2004, Minneapolis, MN 55403-1961, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

Carlton D. Stansbury, 10850 W. Park Pl., Suite 530, Milwaukee, WI 53224-3636,

ABA Advisor

LAWRENCE R. MAXWELL, JR., Douglas Plaza, 8226 Douglas Ave., Suite 550, Dallas, TX 75225-5945, ABA Section Advisor

Charla Bizios Stevens, 900 Elm St., P.O. Box 326, Manchester, NH, 03105-0326,

ABA Section Advisor

Gretchen Walther, 6501 Americas Pkwy. NE, Suite 620, Albuquerque, NM 87110-8166,

ABA Section Advisor

EXECUTIVE DIRECTOR

John A. Sebert, 111 N. Wabash Ave., Suite 1010, Chicago, IL 60602, Executive Director

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

111 N. Wabash Ave., Suite 1010

Chicago, Illinois 60602

312/450-6600

www.nccusl.org

COLLABORATIVE LAW ACT

TABLE OF CONTENTS

SECTION 1. SHORT TITLE. 1

SECTION 2. DEFINITIONS. 1

SECTION 3. COLLABORATIVE LAW PARTICIPATION AGREEMENT. 2

SECTION 4. COMMENCING AND TERMINATING A COLLABORATIVE LAW
PROCESS. 5

SECTION 5. INTERPRETATION AND ENFORCMENT OF AGREEMENTS
CONCERNING COLLABORATIVE LAW... 6

Section 6. Disqualification of A collaborative lawyer. 6

Section 7. evidentiary Privilege for collaborative law communications. 7

SECTION 8. CONFIDENTIALITY OF COLLABORATIVE LAW COMMUNICATIONS. 9

SECTION 9. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND
MANDATORY REPORTING FOR COLLABORATIVE LAWYERS AND NONPARTIES WHO PARTICIPATE IN A COLLABORATIVE LAW PROCESS. 9

SECTION 10. COLLABORATIVE LAW AND THE JUDICIAL PROCESS AFTER COMMENCEMENT OF A PROCEEDING. 10

Section 11. Judicial rule Making regulating collaborative law... 10

SECTION 12. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. 12

SECTION 13. UNIFORMITY OF APPLICATION AND CONSTRUCTION. 12

SECTION 14. SEVERABILITY CLAUSE. 12

SECTION 15. EFFECTIVE DATE. 12

SECTION 16. APPLICATION TO EXISTING AGREEMENTS. 12

Collaborative law act

SECTION 1. SHORT TITLE. This act may be cited as the Collaborative Law Act.

SECTION 2. DEFINITIONS. In this act:

(1) “Collaborative law" or a “collaborative law process” means a process in which parties represented by collaborative lawyers enter into a collaborative law participation agreement which states their intention to negotiate the resolution of a dispute without judicial intervention.

(2) “Collaborative law participation agreement” means a written agreement meeting the requirements of section 3 which is signed by the parties and their collaborative lawyers stating the parties’ intent to participate in collaborative law to attempt to resolve a dispute.

(3) “Party” means a person who enters into a collaborative law participation agreement to attempt to negotiate resolution of a dispute.

(4) “Collaborative lawyer” means a lawyer retained by a party to represent that party in collaborative law.

(5) “Dispute” means issues and matters described in a collaborative law participation agreement that the parties will attempt to resolve through collaborative law process.

(6) “Collaborative law communication” means a statement, whether oral or in a record or verbal or nonverbal, that occurs between the time a collaborative law participation agreement is signed until collaborative law terminates or the process is concluded by resolution of the dispute and is made for the purposes of conducting, participating in, initiating, continuing, or reconvening collaborative law.

(7) “Nonparty participant” means a person, other than a party or collaborative lawyer, who participates in a collaborative law process. A nonparty participant includes, but is not limited to, the following:

(a) a mediator jointly retained by the parties;

(b) a mental health professional, a health care professional, a financial professional, an appraiser or other expert jointly retained by the parties;

(8) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

(9) “Proceeding” means a judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery.

(10) “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.

(11) “Sign” or “signed” means to execute or adopt a tangible symbol with the present intent to authenticate a record; or to attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.

SECTION 3. COLLABORATIVE LAW PARTICIPATION AGREEMENT.

(a) A collaborative law participation agreement must be in writing and be signed by the parties and their collaborative lawyers.

(b) A collaborative law participation agreement must contain following terms:

(1) a party will not seek judicial intervention in the dispute until the collaborative law process terminates, except:

(A) in an emergency involving a credible threat to the life or physical well being of a party or a party’s child or

(B) to seek court approval of any settlement agreement, and sign orders required by law to effectuate the agreement of the parties as the court determines to be appropriate.

(2) a party will make timely, full, candid and informal disclosure of information regarding the subject matter of the dispute and has an obligation to promptly update information previously provided in which there has been a material change.

(3) parties will only retain jointly hired neutral experts.

(4) a neutral expert retained for purposes of participating in the collaborative law process is disqualified from testifying as a witness in any proceeding substantially related to the dispute.

(5) a party has the right to unilaterally terminate the collaborative law process at any time.

(6) a party authorizes a collaborative lawyer to terminate the collaborative law process on a party’s behalf.

(7) if the collaborative law process terminates, a collaborative lawyer and any lawyer associated in the practice of law with that collaborative lawyer:

(A) must withdraw from representing any party in any proceeding or matter substantially related to the dispute, except in an emergency involving a credible threat to the life or physical well being of a party or a party’s child and no successor counsel is available to represent the party;

(B) is disqualified from representing any party in any future proceeding or matter substantially related to the dispute.

(8) a collaborative law process terminates when an event described in section 4 occurs.

(9) a collaborative law communication is privileged from admissibility into evidence as provided in section 7.

(1) an agreement by the parties to participate in collaborative law to attempt to resolve the dispute;

(2) a description of the nature and scope of the dispute the parties seek to resolve through the collaborative law process.

(d) A collaborative law participation agreement must contain a signed acknowledgment by each party that the party:

(1) understands the terms and conditions of the collaborative law participation agreement;

(2) enters into the collaborative law participation agreement voluntarily;

(3) has been provided with adequate information and explanation about the material benefits and risks to make an informed decision whether to enter into collaborative law as compared to other reasonably available alternatives for attempting to resolve the dispute such as negotiation, litigation, arbitration, mediation or evaluation;

(4) recognizes that by signing a collaborative law participation agreement that the party waives certain legal rights, such as formal discovery and judicial intervention in the dispute until the collaborative law process terminates;

(5) recognizes that the party is retaining a lawyer for the limited purpose of representing the party in the collaborative law process;

(6) recognizes that a collaborative lawyer for another party represents the interests of only that party in collaborative law;

(7) acknowledges that by signing a collaborative law participation agreement, the party authorizes his or her collaborative lawyer to terminate collaborative law on the party’s behalf;

(8) acknowledges that a collaborative lawyer will withdraw from further representation of the party in any matter substantially related to the dispute if the collaborative law process terminates, except in an emergency involving a credible threat to the life or physical well being of a party or a party’s child and no successor counsel is available to represent the party;

(9) acknowledges that the collaborative lawyer for the party and any lawyer associated in the practice of law with that collaborative lawyer, is disqualified from representing the party in any proceeding substantially related to the dispute if collaborative law terminates, except in an emergency involving a credible threat to the life or physical well being of a party or a party’s child arises and no successor counsel is available to represent the party.

(e) Parties cannot agree to waive the provisions of this section and participate in collaborative law.

(f) Parties can agree to include additional terms and provisions in a collaborative law participation agreement not inconsistent with the provisions of this section.

SECTION 4. COMMENCING AND TERMINATING A COLLABORATIVE LAW PROCESS.

(a) A collaborative law process commences when parties and their collaborative lawyers sign a collaborative law participation agreement which meets the requirements of section 3.

(b) A party or that party’s collaborative lawyer may terminate a collaborative law process at any time after it commences, for any reason or no reason, with or without cause.

(1) a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party, unless the party retains a successor collaborative lawyer within thirty days after termination of the lawyer-client relationship;

(2) a party commences a proceeding substantially related to the dispute against another party;

(3) a party initiates a contested pleading, motion, order to show cause, request for a conference with the court, request that a case be put on the court’s trial calendar or takes similar action in a pending proceeding substantially related to the dispute;

(d) A party or collaborative lawyer who terminates the collaborative law process shall promptly provide written notice to other parties and collaborative lawyers that collaborative law is terminated as of a specified date. The notice need not specify a reason for terminating the collaborative law process.

SECTION 5. INTERPRETATION AND ENFORCMENT OF AGREEMENTS CONCERNING COLLABORATIVE LAW. A collaborative law participation agreement and any agreement or contract between parties resulting from the collaborative law process that resolves a dispute in whole or in part shall be interpreted and enforced in the same manner as any other agreement or contract.

Section 6. Disqualification of A collaborative lawyer. A collaborative lawyer and any lawyer associated in the practice of law with the collaborative lawyer is disqualified from representing any party to collaborative law in any proceeding or other matter substantially related to the dispute if a collaborative law process terminates, except if the proceeding arises from an emergency involving a credible threat to the life or physical well being of a party or a party’s child and no successor counsel is available to represent the party.

Section 7. evidentiary Privilege for collaborative law communications.

(a) Except as otherwise provided in subsections (g) through (i), 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 waived or precluded as provided by subsections (d) through (f).

(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.

(d) A privilege under this section may be waived in a record or orally during a proceeding if it is expressly waived by all parties to a collaborative law participation agreement and, in the case of the privilege of a nonparty participant, it is also expressly waived by the nonparty participant.

(e) A person who discloses or makes a representation about a collaborative law communication which prejudices another person in a proceeding is precluded from asserting a privilege under this section, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

(f) A person who intentionally uses a collaborative law process to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity, is precluded from asserting a privilege under this section.

(g) There is no privilege under this section for a collaborative law communication that is:

(1) waived in an agreement evidenced by a record signed by all parties to a collaborative law participation agreement;

(2) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(3) intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(4) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or related to collaborative law; or

(5) 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 a vulnerable adult as defined by state law is an issue.

(h) There is no privilege under this section if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that 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.

(i) If a collaborative law communication is not privileged under subsection (g) or (h), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted.

(j) Admission of evidence under subsection (g) or (h) does not render the evidence, or any other collaborative law communication, discoverable or admissible for any other purpose.

(k) If the parties agree in advance in a signed record, or a record of proceeding reflects agreement by the parties, that all or part of the collaborative law process is not privileged, the privileges under subsections (a) through (j) do not apply to the collaborative law process or part agreed upon. However, subsections (a) through (j) apply to a collaborative law communication made by a person that has not received actual notice of the agreement before the communication is made.

SECTION 8. CONFIDENTIALITY OF COLLABORATIVE LAW COMMUNICATIONS. Collaborative law communications are confidential to the extent agreed by the parties in a signed agreement or as provided by other law or rule of this state.

SECTION 9. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND MANDATORY REPORTING FOR COLLABORATIVE LAWYERS AND NONPARTIES WHO PARTICIPATE IN A COLLABORATIVE LAW PROCESS.

(a) The professional responsibility obligations or standards of collaborative lawyers are not changed, modified, or limited by reason of such representation.

(b) The professional responsibility obligations or standards applicable to any licensed professional who serves as a nonparty participant in a collaborative law process are not changed, modified or limited by reason of such engagement.

(c) The obligation of any person to report child abuse or neglect or the abuse or neglect of a vulnerable adult as required by the laws of this State are not changed, modified or limited by that person’s participation in a collaborative law process.

SECTION 10. COLLABORATIVE LAW AND THE JUDICIAL PROCESS AFTER COMMENCEMENT OF A PROCEEDING.

(a) Parties and their collaborative lawyers may engage in collaborative law after commencement of a proceeding.

(b) A collaborative lawyer shall file a notice of collaborative law with the court promptly after a collaborative law participation agreement is signed when a proceeding substantially related to the dispute is pending at that time.

(c) A collaborative lawyer may not appear in court to represent a party for a hearing in a proceeding substantially related to a dispute after a collaborative law process commences, except:

(1) in an emergency involving a credible threat to the life or physical well being of a party or a party’s child and no successor counsel is available to represent the party; or

(2) to have the court approve any settlement agreement, and sign orders required by law to effectuate the agreement of the parties as the court determines to be appropriate.

(d) A collaborative lawyer shall promptly notify the court in writing if a collaborative law process is terminated in any proceeding in which a notice of collaborative law has been filed with the court.

Section 11. Judicial rule Making regulating collaborative law.

(a) The [rule making body of the judicial system of the State]:

(1) shall prescribe rules of practice and procedure that:

(A) suspend case management and judicial supervision of proceedings in civil cases when a notice of collaborative law is filed with a court until a court receives written notice that a collaborative law process is terminated or for other reasonable time;

(B) authorize parties to make applications to the court for emergency orders to protect the life or bodily integrity of a party or a child of a party;

(C ) authorize parties to make application to have the court approve any settlement agreement, and sign orders required by law to effectuate the agreement of the parties as the court determines to be appropriate;

(D) provide for resumption of case management and entry of appropriate orders when a court is notified that a collaborative law process is terminated in a pending proceeding;

(E) provide that the court shall not dismiss a pending proceeding in which a notice of collaborative law is filed based on failure to prosecute or delay without providing collaborative lawyers and the parties appropriate notice and an opportunity to be heard.

(2) may promulgate additional rules of practice and procedure regulating

collaborative law not inconsistent with the provisions of this act which promote the better administration of justice;

(3) may promulgate standard forms for a collaborative law participation agreement, notice of collaborative law, termination of collaborative law and other aspects of collaborative law that promotes the better administration of justice.

(b) The [rule making body of the judicial system of the State] may create a committee of members of the bar, the bench, other professions and lay persons to recommend proposed rules regulating collaborative law.

(c) A rule prescribed under the authority of this act shall be prescribed only after giving appropriate public notice and an opportunity for comment. The notice shall include the text of proposed rule, an explanatory note describing its provisions, and a written report describing the reasons for the proposed rule, and arguments for and against.

SECTION 12. 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 supercede 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 13. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this [act], consideration should be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 14. 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 15. EFFECTIVE DATE. This [act] takes effect ....................

SECTION 16. APPLICATION TO EXISTING AGREEMENTS.

(a) This [act] governs a collaborative law participation agreement signed on or after [the effective date of this [act]].

(b) On or after [a delayed date], this [act] governs a collaborative law participation agreement whenever made.

° Professor Schepard thanks Elizabeth Bruzzo and Rebecca Miller, Hofstra Law School class of 2007; Laura Daly, Hofstra Law School class of 2008; and Kate Brittle, Angela Burton, and Brittany Shrader, Hofstra Law School class of 2009 for their invaluable and ongoing research assistance.