DRAFT FOR DISCUSSION ONLY COLLABORATIVE LAW ACT _______________________________________________ NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS ________________________________________________ REPORTER’S FIFTH DRAFT FOR COMMENT MARCH 2008 NOT REVIEWED BY THE DRAFTING COMMITTEE 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 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. March 20, 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 REQUIREMENTS 3 SECTION 4. BEGINNING AND TERMINATING COLLABORATIVE LAW. 4 SECTION 5. COLLABORATIVE LAW IN PENDING PROCEEDINGS. 5 SECTION 6. DISQUALIFICATION OF COLLABORATIVE LAWYER. 6 SECTION 7. DISCLOSURES CONCERNING AND APPROPRIATENESS OF COLLABORATIVE LAW. 7 SECTION 8. COLLABORATIVE LAW AND LOW INCOME PARTIES 8 SECTION 9. PRIVILEGE AGAINST DISCLOSURE FOR COLLABORATIVE LAW COMMUNICATIONS; ADMISSIBILITY; DISCOVERY. 9 SECTION 10. WAIVER AND PRECLUSION OF PRIVILEGE 10 SECTION 11. EXCEPTIONS TO PRIVILEGE 10 SECTION 12. CONFIDENTIALITY OF COLLABORATIVE LAW COMMUNICATIONS 12 SECTION 13. ENFORCMENT OF COLLABORATIVE LAW PARTICIPATION AGREEMENTS NOT MEETING REQUIREMENTS 12 SECTION 14. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND MANDATORY REPORTING 12 SECTION 15. UNIFORMITY OF APPLICATION AND CONSTRUCTION. 13 SECTION 16. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. 13 SECTION 17. SEVERABILITY CLAUSE 13 SECTION 18. APPLICATION TO EXISTING AGREEMENTS 13 SECTION 19. EFFECTIVE DATE 13 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 attempt to resolve a matter without the intervention of a tribunal under a collaborative law participation agreement. (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 the collaborative law process terminates or is concluded by negotiated resolution of the matter; and (B) is made for the purposes of conducting, participating in, continuing, or reconvening collaborative law. (3) “Collaborative law participation agreement” means an agreement by persons to participate in collaborative law meeting the requirements of section 3.   (4) “Collaborative lawyer” means a lawyer identified in a collaborative law participation agreement as having been engaged to represent a party in collaborative law and who is disqualified from representing parties in the matter and substantially related matters if the collaborative law process terminates. (5) “Law firm” means a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law, or lawyers employed or 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 described in a collaborative law participation agreement. A matter may, but need not be, a claim, issue or dispute in a proceeding. (7) “Nonparty participant” means a person, other than a party, 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, or other adjudicative process before a tribunal, including related pre-hearing and post-hearing motions, conferences, and discovery. (11) “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. (12) “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. (13) “Substantially related” means involves the same transaction or occurrence, nucleus of operative fact, claim, issue or dispute as another matter or proceeding. (14) “Tribunal” means a court, an arbitrator, or a legislative body, administrative agency, or other body acting in an adjudicative capacity. A legislative body, administrative agency, or other body acts in an adjudicative capacity if a neutral official, after presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular 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 the matter; (4) state the parties’ intention to attempt to resolve the matter in collaborative law; (5) identify the collaborative lawyer engaged by each party to represent the party in collaborative law; 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 not initiate a proceeding or seek tribunal intervention in a pending proceeding substantially related to the matter until the collaborative law process terminates, except: (A) for protective proceedings involving a threat to the safety of a party or a party’s dependent when no successor lawyer is immediately available; or (B) to seek tribunal approval of any settlement agreement and sign orders to effectuate the agreement of the parties resulting from collaborative law. (2) 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 provided with respect to which there has been a material change; and (3) may unilaterally terminate the collaborative law process at any time for any or no reason. (c) Parties to a collaborative law participation agreement under this [act] may agree to include additional terms and provisions not inconsistent with the provisions of this section. (d) Parties who wish to participate in collaborative law under this [act] cannot agree to waive or vary the effect of the requirements of this section. SECTION 4. BEGINNING AND TERMINATING COLLABORATIVE LAW. (a) Collaborative law begins when parties execute a collaborative law participation agreement that meets the requirements of section 3. (b) Except as provided in subsection (d), collaborative law terminates when a party: (1) gives written notice of termination to other parties and collaborative lawyers; (2) begins a proceeding substantially related to the matter; (3) initiates a contested 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; or (4) discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party. (c) The party who terminates collaborative law and that party’s collaborative lawyer shall provide prompt written notice of the termination of collaborative law to all other parties and collaborative lawyers. The notice: (1) shall state collaborative law is terminated as of a specific date. (2) need not specify a reason for terminating collaborative law. (d) Notwithstanding the discharge or withdrawal of a collaborative lawyer, the collaborative law process may continue if within thirty days of the date of the written notice of discharge or withdrawal: (1) the unrepresented party engages a successor collaborative lawyer; (2) all parties consent to continuation of the collaborative law process by reaffirming the collaborative law participation agreement in a signed record; (3) the collaborative law participation agreement is amended to identify the and acknowledge engagement of the successor collaborative lawyer in a signed record. (e) A collaborative law participation agreement may provide additional methods of terminating collaborative law. SECTION 5. COLLABORATIVE LAW IN PENDING PROCEEDINGS. (a) Parties in a pending proceeding may execute a collaborative law participation agreement to attempt to resolve any matter substantially related to the proceeding. (b) Parties shall promptly file a notice of collaborative law with the tribunal in which the proceeding is pending after a collaborative law participation agreement is executed. (c) After collaborative law begins a collaborative lawyer may not appear before a tribunal to represent a party in a pending proceeding substantially related to a matter, except: (1) in protective proceedings involving a threat to the safety of a party or a party’s dependent when no successor lawyer is immediately available; (2) to seek tribunal approval of a settlement agreement and sign orders to effectuate the agreement resulting from collaborative law. (d) Upon the filing of a notice of collaborative law, a tribunal shall suspend case management and supervision of the pending proceeding until it receives written notice that the collaborative law process is terminated. (e) Notwithstanding subsection (d), a tribunal may: (1) issue emergency orders to protect the safety of a party or a party’s dependent; (2) approve a settlement agreement and sign orders to effectuate a settlement agreement resulting from collaborative law. (f) Parties shall promptly notify the tribunal in writing if the collaborative law process is terminated. A tribunal shall then resume case management and enter appropriate orders as the interests of justice require. (g) A tribunal shall not dismiss a pending proceeding in which a notice of collaborative law 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 pending 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. (a) If a collaborative law process terminates, a collaborative lawyer, and any law firm with which the collaborative lawyer is affiliated, is disqualified from representing a party in the matter and substantially related matters or proceedings. (b) Notwithstanding subsection (a), a collaborative lawyer and any law firm with which the collaborative lawyer is affiliated is not disqualified from representing a party: (1) in protective proceedings involving a threat to the safety of a party or a party’s dependent when no successor lawyer is immediately available; (2) to seek tribunal approval of a settlement agreement and sign orders to effectuate the agreement resulting from collaborative law. (c) A tribunal may enforce the provisions of this section through entry of appropriate orders as the interests of justice require. SECTION 7. DISCLOSURES CONCERNING AND APPROPRIATENESS OF COLLABORATIVE LAW. (a) Before a client executes a collaborative law participation agreement, a lawyer shall: (1) provide the client with adequate information about the material benefits and risks of collaborative law as compared to the material benefits and risks of other reasonably available alternatives such as litigation, mediation, arbitration, or expert evaluation sufficient for the client to make an informed decision about whether to enter into collaborative law to attempt to resolve the matter; (2) advise the client: (A) that any party has the right to terminate a collaborative law process at any time; (B) that if the collaborative law process terminates a collaborative lawyer: (i) must withdraw from further representation of the party in the matter and any substantially related matter or proceeding, except in protective proceedings involving a threat to the safety of a party or a party’s dependent when no successor lawyer is immediately available; and (ii) is disqualified from representing the party in any future substantially related matter or proceeding. (3) inquire about and discuss with the client factors relevant to whether the collaborative law process is appropriate for the client’s matter. (b) A lawyer shall make reasonable efforts to determine whether a client has a history of domestic violence with other prospective parties before a client signs a collaborative law participation agreement and shall continue throughout the collaborative law process to assess for the presence of domestic violence. (c) If it appears to a collaborative lawyer that the lawyer’s client is a victim of domestic violence, the lawyer shall not begin or shall terminate any collaborative law process previously begun unless: (1) the client requests beginning or continuation of the collaborative law process; (2) the collaborative lawyer reasonably believes that the client’s safety can be adequately protected during the collaborative law process; and (3) the collaborative lawyer is competent in representing victims of domestic violence. SECTION 8. COLLABORATIVE LAW AND LOW INCOME PARTIES. (a) This section applies to collaborative law participation agreements if a party is represented by a collaborative lawyer who is an employee of or affiliated with a law firm, legal aid office, law school clinic, court sponsored program, or not-for-profit organization which provides free or low cost legal services to low income persons. (b) If a party is represented by a collaborative lawyer described in subsection (a), a collaborative law participation agreement may provide that the law firm, office, clinic, program or organization that employs the lawyer or with which the lawyer is affiliated is not disqualified by section 6 from continuing to represent a party after collaborative law terminates, if: (1) the collaborative lawyer is personally disqualified from continuing to represent a party in the matter and any substantially related matter or proceeding; (2) all parties consent to the continued representation of a party by the law firm, office, clinic, program or organization; and (3) the disqualified collaborative lawyer is isolated from any participation in the matter or any substantially related matter or proceeding, except as necessary to transfer responsibility for the matter to successor counsel. (c) If a collaborative law participation agreement contains the provisions authorized by section (b) and collaborative law terminates, the law firm, office, clinic, program or organization with which the collaborative lawyer is employed or affiliated is not disqualified under section 6 from continuing to represent a party, if the collaborative lawyer: (1) is personally disqualified from continuing to represent a party in the matter and substantially related matter or proceeding; (2) is isolated from any participation in the matter or any substantially related matter or proceeding, except as necessary to transfer responsibility for the matter to successor counsel. (d) A tribunal may enforce the provisions of this section through entry of appropriate orders as the interests of justice require. SECTION 9. PRIVILEGE AGAINST DISCLOSURE FOR COLLABORATIVE LAW COMMUNICATIONS; ADMISSIBILITY; DISCOVERY. (a) Except as otherwise provided in section 11, 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 section 10. (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 10. WAIVER AND PRECLUSION OF PRIVILEGE. (a) A privilege under section 9 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 9, 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 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. SECTION 11. EXCEPTIONS TO PRIVILEGE. (a) There is no privilege under section 9 for a collaborative law communication which is: (1) waived in an agreement evidenced by a record signed by all parties; (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 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 law is an issue. (b) There is no privilege under section 9 if a tribunal 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. (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 the collaborative law process is not privileged, the privileges under section 9 do not apply to the collaborative law process or the part thereof to which the agreement to waive the privilege applies. However, section 9 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 12. CONFIDENTIALITY OF COLLABORATIVE LAW COMMUNICATIONS. A collaborative law communication is confidential to the extent agreed by the parties in a signed record or as provided by other law other than this [act] or rule of this state. SECTION 13. ENFORCMENT OF COLLABORATIVE LAW PARTICIPATION AGREEMENTS NOT MEETING REQUIREMENTS. Notwithstanding the failure of a collaborative law participation agreement to meet the requirements of section 3, or a lawyer’s failure to comply with the disclosure requirements of section 7, if a tribunal finds that parties had a reasonable expectation of participating in collaborative law, the tribunal may, if the interests of justice require: (1) enforce an agreement resulting from the process in which the parties participated; (2) apply the disqualification provisions of section 6; or (3) apply the evidentiary privilege of section 9. SECTION 14. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND MANDATORY REPORTING. (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 collaborative law. (b) The professional responsibility obligations and standards applicable to any licensed professional who participates in collaborative law as a non party participant are not changed because of that participation. (c) The obligations of any person to report abuse or neglect of a child or vulnerable adult under the laws of this state are not changed by a person’s participation in collaborative law. SECTION 15. 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 16. 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 17. 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 18. 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. SECTION 19. 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 Elizabeth Bruzzo and Rebecca Miller, Hofstra Law School class of 2007; Laura Daly, Hofstra Law School class of 2008; and Angela Burton, Brittany Shrader, and Joshua Reiger, Hofstra Law School class of 2009 for their invaluable and ongoing research assistance. ?? ?? ?? ?? 4 13