DRAFT
FOR DISCUSSION ONLY
UNIFORM COLLABORATIVE
LAW ACT
and
UNIFORM
COLLABORATIVE LAW RULES
_______________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
Draft of Proposed Amendments to Uniform Collaborative Law Act, March 2010
Changes Shown in Strike and Score
Without Prefatory Notes or Comments
Copyright © 2010
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
March 5, 2010
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,
Michael A. Ferry, 200 N. Broadway,
Elizabeth Kent, Center for Alternative
Dispute Resolution,
Byron D. Sher,
Harry L. Tindall,
Andrew Schepard,
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,
Gretchen Walther,
EXECUTIVE DIRECTOR
John
A. Sebert,
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
UNIFORM COLLABORATIVE
LAW ACT
TABLE OF CONTENTS
[SECTION 3. JUDICIAL
RULE MAKING
[SECTION 3
PROCEEDINGS PENDING BEFORE TRIBUNAL; STATUS REPORT.
[SECTION 4.][RULE 1] COLLABORATIVE LAW PARTICIPATION
AGREEMENT; REQUIREMENTS.
[SECTION 5.][RULE 2]
BEGINNING AND CONCLUDING A COLLABORATIVE LAW PROCESS.
[SECTION 6.][RULE 3] PROCEEDINGS PENDING BEFORE TRIBUNAL; STATUS
REPORT.
[SECTION 7.][RULE 4]
EMERGENCY ORDER.
[SECTION 8.][RULE 5]
APPROVAL OF AGREEMENT BY TRIBUNAL.
SECTION 9.[RULE 6]
DISQUALIFICATION OF COLLABORATIVE LAWYER AND LAWYERS IN ASSOCIATED LAW
FIRM.
[SECTION 10][RULE 7] LOW
INCOME PARTIES.
[SECTION 11][RULE 8].
GOVERNMENTAL ENTITY AS PARTY.
[SECTION 13][RULE 10].
COERCIVE OR VIOLENT RELATIONSHIP.
[SECTION 14][RULE 11].
AUTHORITY OF TRIBUNAL IN CASE OF
NONCOMPLIANCE.
[SECTION 15][RULE 12].
DISCLOSURE OF INFORMATION.
[SECTION 17][RULE 14].
CONFIDENTIALITY OF COLLABORATIVE LAW COMMUNICATION.
SECTION 19. WAIVER
AND PRECLUSION OF PRIVILEGE.
SECTION 20. LIMITS
OF PRIVILEGE.
SECTION 21.
UNIFORMITY OF APPLICATION AND CONSTRUCTION.
SECTION 22.
RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.
Legislative Note: Each state adopting
the Uniform Collaborative Law Act and associated Uniform Collaborative
Law Rules should review its practices and precedent to
first determine whether each provision is best adopted by court rule or
statute. While state
preferences may vary in this regard, the drafters of the
UCLA broadly recognize that sections 4
through 14 might
best be adopted by court rule where practical, while the rest
of the act (especially the provisions
regarding privilege) be adopted in statute. Legislative drafting agencies may need to
renumber sections and crossreferences depending on these placement decisions.
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)
“Collaborative law communication” means a statement, whether oral or in a
record, or verbal or nonverbal, that:
(A)
is made to conduct, participate in, continue, or reconvene a collaborative law
process; and
(B)
occurs after the parties sign a collaborative law participation agreement and
before the collaborative law process is concluded.
(2)
“Collaborative law participation agreement” means an agreement by persons to
participate in a collaborative law process.
(3)
“Collaborative law process” means a procedure intended to resolve a
collaborative matter without intervention by a tribunal in which persons:
(A)
sign a collaborative law participation agreement; and
(B)
are represented by collaborative lawyers.
(4)
“Collaborative lawyer” means a lawyer who represents a party in a collaborative
law process.
(5)
“Collaborative matter” means a dispute, transaction, claim, problem, or issue
for resolution described in a collaborative law participation agreement. The
term includes a dispute, claim, or issue in a proceeding which:
(A)
is described in a collaborative law participation agreement; and
Alternative
A
(B)
[which
involves or is related
to disputes between or among current
or former family members,
including marriage, divorce, annulment, and property
distribution; child custody and visitation; alimony and child support;
paternity, adoption, and termination of parental rights; juvenile delinquency,
child abuse, and child neglect; domestic violence; criminal nonsupport; name
change; guardianship of minors and disabled persons; and withholding or withdrawal
of life-sustaining medical procedures, involuntary admissions, and emergency
evaluations.]
Alternative
B
(B) [arising among parties
with continuing familial, personal, or
business relationships
which will extend beyond the term of the dispute, claim, or issue at
issue.]
Alternative
C
(B) [arising
under the Family Code of this State.]
End of Alternatives
(6)
“Law firm” means:
(A)
lawyers who practice law together in a partnership, professional corporation,
sole proprietorship, limited liability company, or association; and
(B)
lawyers employed in a legal services organization, or the legal department of a
corporation or other organization, or the legal department of a government or
governmental subdivision, agency, or instrumentality.
(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 signs a collaborative law participation agreement
and whose consent is necessary to resolve a collaborative 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)
a judicial, administrative, arbitral, or other adjudicative process before a tribunal,
including related prehearing and post-hearing motions, conferences, and
discovery; or
(B)
a legislative hearing or similar process.
(11)
“Prospective party” means a person that discusses with a prospective
collaborative lawyer the possibility of signing a collaborative law
participation agreement
(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)
“Related to a collaborative matter” means involving the same parties,
transaction or occurrence, nucleus of operative fact, dispute, claim, or issue
as the collaborative matter.
(14)
“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.
(15)
“Tribunal” means
(A)
a court, arbitrator, administrative agency, or other body acting in an
adjudicative capacity which, after presentation of evidence or legal argument,
has jurisdiction to render a decision affecting a party’s interests in a
matter; or
(B)
a legislative body conducting a hearing or similar process.
Comment
We will need to
describe the benefits and limitations of any changes made to
the definitional scope of “Collaborative
Matter”. The
Committee should also consider adding additional commentary to describe how
parties could contract to use collaborative processes in matters arising
outside the scope of the chosen definition(s).
Alternative A
(a) The [judicial rule
making body] shall prescribe rules for the collaborative law process which
shall address:
(1)
The effect of parties entering into a collaborative law process on pending
proceedings, including stays of proceeding, status reports, and emergency
orders;
(2)
How parties may seek tribunal approval, where necessary, of agreements entered
into by parties through a collaborative law process;
(3) How collaborative
lawyers may obtain informed consent by parties and prospective parties before
entering into a collaborative law participation agreement;
(4) The requirements
for collaborative law participation agreements;
(5)
Screening and methods of assuring safety if prospective parties or parties in a
collaborative law process have a history of a coercive and violent
relationship;
(6) How a collaborative law process begins and ends;
(7) How
tribunals shall enforce the disqualification provisions of Rule
6, 7, and 8;
(8)
Education and training requirements for collaborative lawyers and other
professionals who participate in the collaborative law process;
and
(9)
Any other subject that promotes growth and development of collaborative law as
an effective alternative dispute resolution process, including the promulgation
of standard forms for the collaborative law process.
(B)
Rules promulgated by [judicial rule making body] shall not be inconsistent with
the provisions of this [act].]
Alternative B
(a)
Persons in a proceeding pending before a tribunal may sign a collaborative law
participation agreement to seek to resolve a collaborative matter related to
the proceeding. Parties shall file promptly with the tribunal a notice of the
agreement after it is signed. Subject to subsection (c) and Sections 7 and 8,
the filing operates as a stay of the proceeding.
(b)
Parties shall file promptly with the tribunal notice in a record when a
collaborative law process concludes. The stay of the proceeding under subsection
(a) is lifted when the notice is filed. The notice may not specify any reason
for termination of the process.
(c)
A tribunal in which a proceeding is stayed under subsection (a) may require
parties and collaborative lawyers to provide a status report on the
collaborative law process and the proceeding. A status report may include only
information on whether the process is ongoing or concluded. It may not include
a report, assessment, evaluation, recommendation, finding, or other
communication regarding a collaborative law process or collaborative law
matter.
(d)
A tribunal may not consider a communication made in violation of subsection
(c).
(e)
A tribunal shall provide parties notice and an opportunity to be heard before
dismissing a proceeding in which a notice of collaborative process is filed
based on delay or failure to prosecute.]
Legislative
Note: States wishing to adopt the subject
matter of this legislation by
court rule, should enact Alternative A,
while states wishing to adopt this subject matter by statute should enact
Alternative B.
(a) A collaborative law participation agreement must:
(1) be in a record;
(2) be signed by the parties;
(3) state the parties’ intention to resolve a
collaborative matter through a collaborative law process under this [act][Rule];
(4) describe the nature and scope of the
matter;
(5) identify the collaborative lawyer who
represents each party in the process; and
(6) contain a statement by each collaborative
lawyer confirming the lawyer’s representation of a party in the collaborative
law process.
(b) Parties may agree to include in a collaborative law
participation agreement additional provisions not inconsistent with this [act][rule].
(a) A
collaborative law process begins when the parties sign a collaborative law
participation agreement.
(b) A
tribunal may not order a party to participate in a collaborative law process
over that party’s objection.
(c) A
collaborative law process is concluded by a:
(1)
resolution of a collaborative matter as evidenced by a signed record;
(2)
resolution of a part of the collaborative matter, evidenced by a signed record,
in which the parties agree that the remaining parts of the matter will not be
resolved in the process; or
(3)
termination of the process.
(d) A
collaborative law process terminates:
(1)
when a party gives notice to other parties in a record that the process is
ended; or
(2)
when a party:
(A)
begins a proceeding related to a collaborative matter without the agreement of
all parties; or
(B)
in a pending proceeding related to the matter:
(i)
initiates a pleading, motion, order to show cause, or request for a conference
with the tribunal;
(ii)
requests that the proceeding be put on the [tribunal’s active calendar]; or
(iii)
takes similar action requiring notice to be sent to the parties; or
(3)
except as otherwise provided by subsection (e), when a party discharges a
collaborative lawyer or a collaborative lawyer withdraws from further representation
of a party.
(e) A
party’s collaborative lawyer shall give prompt notice to all other parties in a
record of a discharge or withdrawal.
(f) A
party may terminate a collaborative law process with or without cause.
(g)
Notwithstanding the discharge or withdrawal of a collaborative lawyer, a
collaborative law process continues, if not later than 30 days after the date
that the notice of the discharge or withdrawal of a collaborative lawyer
required by subsection (e)(3) is sent to the parties:
(1)
the unrepresented party engages a successor collaborative lawyer; and
(2)
in a signed record:
(A)
the parties consent to continue the process by reaffirming the collaborative
law participation agreement;
(B)
the agreement is amended to identify the successor collaborative lawyer; and
(C)
the successor collaborative lawyer confirms the lawyer’s representation of a
party in the collaborative process.
(h) A
collaborative law process does not conclude if, with the consent of the parties,
a party requests a tribunal to approve a resolution of the collaborative matter
or any part thereof as evidenced by a signed record.
(i) A
collaborative law participation agreement may provide additional methods of
concluding a collaborative law process.
(a) Persons in a proceeding pending before a tribunal may
sign a collaborative law participation agreement to seek to resolve a
collaborative matter related to the proceeding. Parties shall file promptly
with the tribunal a notice of the agreement after it is signed. Subject to
subsection (c) and [Sections 7 and 8][Rules 4 and 5],
the filing operates as a stay of the proceeding.
(b) Parties shall file promptly with the tribunal notice
in a record when a collaborative law process concludes. The stay of the proceeding
under subsection (a) is lifted when the notice is filed. The notice may not
specify any reason for termination of the process.
(c) A tribunal in which a proceeding is stayed under
subsection (a) may require parties and collaborative lawyers to provide a
status report on the collaborative law process and the proceeding. A status
report may include only information on whether the process is ongoing or
concluded. It may not include a report, assessment, evaluation, recommendation,
finding, or other communication regarding a collaborative law process or
collaborative law matter.
(d) A tribunal may not consider a communication made in
violation of subsection (c).
(e) A tribunal shall provide parties notice and an
opportunity to be heard before dismissing a proceeding in which a notice of
collaborative process is filed based on delay or failure to prosecute.
[SECTION
7.][RULE 4] EMERGENCY ORDER. During a collaborative law process, a tribunal may issue emergency orders to
protect the health, safety, welfare, or interest of a party or [insert term for
family or household member as defined in [state civil protection order
statute]].
[SECTION 8.][RULE 5]
APPROVAL OF AGREEMENT BY TRIBUNAL. A tribunal may approve an agreement resulting from a
collaborative law process.
(a) Except as otherwise provided in subsection (c), a
collaborative lawyer is disqualified from appearing before a tribunal to
represent a party in a proceeding related to the collaborative matter.
(b) Except as otherwise provided in subsection (c) and [Sections
10 and 11][Rules 7 and 8], a lawyer in a law
firm with which the collaborative lawyer is associated is disqualified from
appearing before a tribunal to represent a party in a proceeding related to the
collaborative matter if the collaborative lawyer is disqualified from doing so
under subsection (a).
(c) A collaborative lawyer or a lawyer in a law firm with
which the collaborative lawyer is associated may represent a party:
(1) to ask a tribunal to approve an agreement
resulting from the collaborative law process; or
(2) to seek or defend an emergency order to
protect the health, safety, welfare, or interest of a party, or [insert term
for family or household member as
defined in [state civil protection order statute]] if a successor lawyer is not
immediately available to represent that person. In that event, subsections (a)
and (b) apply when the party, or [insert term for family or household member]
is represented by a successor lawyer or reasonable measures are taken to
protect the health, safety, welfare, or interest of that person.
(a) The disqualification of [Section
9(a)][Rule 6(a)] applies to a
collaborative lawyer representing a party with or without fee.
(b) After a collaborative law process concludes, another
lawyer in a law firm with which a collaborative lawyer disqualified under [section
9(a)][Rule 6(a)] is associated may represent
a party without fee in the collaborative matter or a matter related to the
collaborative matter if:
(1) the party has an annual income that
qualifies the party for free legal representation under the criteria
established by the law firm for free legal representation;
(2) the collaborative law participation
agreement so provides; and
(3) the collaborative lawyer is isolated from
any participation in the collaborative matter or a matter related to the
collaborative matter through procedures within the law firm which are
reasonably calculated to isolate the collaborative lawyer from such
participation.
(a) The disqualification of [Section
9(a)] [Rule 6(a)] applies to a collaborative lawyer representing
a party that is a government or governmental subdivision, agency, or
instrumentality.
(b) After a collaborative law process concludes, another
lawyer in a law firm with which the collaborative lawyer is associated may
represent a government or governmental subdivision, agency, or instrumentality
in the collaborative matter or a matter related to the collaborative matter if:
(1) the collaborative law participation
agreement so provides; and
(2) the collaborative lawyer is isolated from
any participation in the collaborative matter or a matter related to the
collaborative matter through procedures within the law firm which are
reasonably calculated to isolate the collaborative lawyer from such
participation.
[SECTION
12][RULE 9]. APPROPRIATENESS
OF COLLABORATIVE LAW PROCESS. Before a prospective party signs a
collaborative law participation agreement, a prospective collaborative lawyer
shall:
(1) assess with the prospective party factors the
lawyer reasonably believes relate to whether a collaborative law process is
appropriate for the prospective party’s matter;
(2) provide the prospective party with information
that the lawyer reasonably believes is sufficient for the party 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 proposed collaborative matter, such as
litigation, mediation, arbitration, or expert evaluation; and
(3) advise the prospective party that:
(A) after signing an
agreement if a party initiates a proceeding or seeks tribunal intervention in a
pending proceeding related to the collaborative matter, the collaborative law
process terminates;
(B) participation in a
collaborative law process is voluntary and any party has the right to terminate
unilaterally a collaborative law process with or without cause; and
(C) the collaborative
lawyer and any lawyer in a law firm with which the collaborative lawyer is
associated may not appear before a tribunal to represent a party in a
proceeding related to the collaborative matter, except as authorized by [Section
9(c), 10(b), or 11(b)][Rule 6(c), 7(b) or
8(b)].
(a) Before a prospective party signs a
collaborative law participation agreement, a prospective collaborative lawyer
must make reasonable inquiry whether the prospective party has a history of a
coercive or violent relationship with another prospective party.
(b) Throughout a collaborative law process, a
collaborative lawyer reasonably and continuously shall assess whether the party
the collaborative lawyer represents has a history of a coercive or violent
relationship with another party.
(c) If a collaborative lawyer reasonably believes
that the party the lawyer represents or the prospective party who consults the
lawyer has a history of a coercive or violent relationship with another party
or prospective party, the lawyer may not begin or continue a collaborative law
process unless:
(1) the party or the
prospective party requests beginning or continuing a process; and
(2) the collaborative
lawyer reasonably believes that the safety of the party or prospective party
can be protected adequately during a process.
(a) If
an agreement fails to meet the requirements of Section 4, or a lawyer fails to
comply with [Section 12 or
13][Rule 9 or 10], a
tribunal may nonetheless find that the parties intended to enter into a collaborative
law participation agreement if they:
(1) signed a record
indicating an intention to enter into a collaborative law participation
agreement; and
(2) reasonably
believed they were participating in a collaborative law process.
(b) If a tribunal
makes the findings specified in subsection (a), and the interests of justice
require, the tribunal may:
(1) enforce an agreement evidenced by a record
resulting from the process in which the parties participated;
(2) apply the
disqualification provisions of [Sections
5, 6, 9, 10, and 11][Rules 2, 3, 6, and
7]; and
(3) apply the
privileges under Section 18.
[SECTION 1215][RULE
12]. DISCLOSURE OF
INFORMATION. Except as provided by law other than this
[act], during the collaborative law process, on the request of another party, a
party shall make timely, full, candid, and informal disclosure of information
related to the collaborative matter without formal discovery. A party also
shall update promptly previously disclosed information that has materially
changed. Parties may define the scope of disclosure during the collaborative
law process.
[SECTION 1316][RULE
13]. STANDARDS OF
PROFESSIONAL RESPONSIBILITY AND MANDATORY REPORTING NOT AFFECTED. This [act] does not affect:
(1) the
professional responsibility obligations and standards applicable to a lawyer or
other licensed professional; or
(2) the
obligation of a person to report abuse or neglect, abandonment, or exploitation
of a child or adult under the law of this state.
SECTION 14. APPROPRIATENESS
OF COLLABORATIVE LAW PROCESS. Before a
prospective party signs a collaborative law participation agreement, a
prospective collaborative lawyer shall:
(1)
assess with the prospective party factors the lawyer reasonably believes relate
to whether a collaborative law process is appropriate for the prospective
party’s matter;
(2)
provide the prospective party with information that the lawyer reasonably
believes is sufficient for the party 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
proposed collaborative matter, such as litigation, mediation, arbitration, or expert
evaluation; and
(3)
advise the prospective party that:
(A)
after signing an agreement if a party initiates a proceeding or seeks tribunal
intervention in a pending proceeding related to the collaborative matter, the
collaborative law process terminates;
(B)
participation in a collaborative law process is voluntary and any party has the
right to terminate unilaterally a collaborative law process with or without
cause; and
(C)
the collaborative lawyer and any lawyer in a law firm with which the collaborative
lawyer is associated may not appear before a tribunal to represent a party in a
proceeding related to the collaborative matter, except as authorized by section
9(c), 10(b), or 11(b).
[MK2] SECTION 15. COERCIVE OR VIOLENT RELATIONSHIP.
(a) Before a prospective
party signs a collaborative law participation agreement, a prospective
collaborative lawyer must make reasonable inquiry whether the prospective party
has a history of a coercive or violent relationship with another prospective
party.
(b) Throughout a
collaborative law process, a collaborative lawyer reasonably and continuously
shall assess whether the party the collaborative lawyer represents has a
history of a coercive or violent relationship with another party.
(c) If a collaborative
lawyer reasonably believes that the party the lawyer represents or the
prospective party who consults the lawyer has a history of a coercive or
violent relationship with another party or prospective party, the lawyer may
not begin or continue a collaborative law process unless:
(1) the party or the
prospective party requests beginning or continuing a process; and
(2) the collaborative
lawyer reasonably believes that the safety of the party or prospective party
can be protected adequately during a process.[MK3]
[SECTION 1617][RULE
14]. 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 of this state other than this [act].
(a) Subject
to Sections 18 and 19, a collaborative law communication is privileged under
subsection (b), is not subject to discovery, and is not admissible in evidence.
(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 because of its disclosure
or use in a collaborative law process.
(a) A privilege under Section 17 18 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 makes a disclosure or representation
about a collaborative law communication which prejudices another person in a
proceeding may not assert a privilege under Section 1718,
but this preclusion applies only to the extent necessary for the person
prejudiced to respond to the disclosure or representation.
(a) There is no privilege under Section 17 18 for
a collaborative law communication that is:
(1) available to the public under [state open
records act] or made during a session of a collaborative law process that is
open, or is required by law to be open, to the public;
(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,
commit or attempt to commit a crime, or conceal an ongoing crime or ongoing
criminal activity; or
(4) in an agreement resulting from the
collaborative law process, evidenced by a record signed by all parties to the
agreement.
(b) The privileges under Section 17 18 for
a collaborative law communication do not apply to the extent that a
communication is:
(1) sought or offered to prove or disprove a
claim or complaint of professional misconduct or malpractice arising from or
related to a collaborative law process; or
(2) sought or offered to prove or disprove
abuse, neglect, abandonment, or exploitation of a child or adult, unless the
[child protective services agency or adult protective services agency] is a
party to or otherwise participates in the process.
(c) There is no privilege under Section 17 18 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 seeking rescission or
reformation of a contract arising out of the collaborative law process or in
which a defense to avoid liability on the contract is asserted.
(d) If a collaborative law communication is subject to an
exception under subsection (b) or (c), only the part of the communication
necessary for the application of the exception may be disclosed or admitted.
(e) Disclosure or admission of evidence excepted from the
privilege under subsection (b) or (c) does not make the evidence or any other
collaborative law communication discoverable or admissible for any other
purpose.
(f) The privileges under Section 17 18 do
not apply 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. This subsection does not apply to
a collaborative law communication made by a person that did not receive actual
notice of the agreement before the communication was made.
(a)
If an agreement fails to meet the requirements of Section 4, or a lawyer fails
to comply with Section 14 or 15, a tribunal may nonetheless find that the
parties intended to enter into a collaborative law participation agreement if
they:
(1)
signed a record indicating an intention to enter into a collaborative law
participation agreement; and
(2)
reasonably believed they were participating in a collaborative law process.
(b)
If a tribunal makes the findings specified in subsection (a), and the interests
of justice require, the tribunal may:
(1)
enforce an agreement evidenced by a record resulting from the process in which
the parties participated;
(2)
apply the disqualification provisions of Sections 5, 6, 9, 10, and 11; and
(3)
apply the privileges under Section 17.
SECTION 21. 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 22. 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.A. § 7001 et seq. (2009),
but does not modify, limit, or supersede section 101(c) of that act, 15
U.S.C.A. § 7001(c), or authorize electronic delivery of any of the notices
described in § 103(b) of that act, 15 U.S.C.A. § 7003(b).
[SECTION 23. SEVERABILITY. 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 24. APPLICABILITY. This [act] applies to a collaborative law
participation agreement that meets the requirements of [Section
4][Rule1] signed [on or] after
[the effective date of this [act]].
SECTION
25. EFFECTIVE DATE. This [act] takes
effect............
· Professor
Schepard thanks Yishai Boyarin, Hofstra Law School LL.M 2009, Elizabeth Bruzzo
and Rebecca Miller, Hofstra Law School J.D. 2007, Laura Daly, Hofstra Law
School J.D. 2008, Angela Burton, Jesse Lubin, Joshua Reiger, and Brittany
Shrader, Hofstra Law School J.D. 2009, and Mary Ann Harvey, Ashley Lorance,
Beyza Killeen, and Jessie Fillingim, Hofstra Law School class of 2010, for
their invaluable and ongoing research assistance.