Special Publication: The Uniform Collaborative Law Act

Letter to Members

Dear Colleagues:

This is a Special Newsletter to provide CLI members with the information and opportunity necessary to make a collective decision as an institute to support the Uniform Collaborative Law Act (UCLA).

In 2007, the Uniform Law Commission decided to draft a proposed Uniform Collaborative Law Act, aimed at supporting the growth and development of Collaborative Law by making it more accessible and uniform among the states. The UCLA is now in its final draft and is expected to be up for approval by the Minnesota legislature in January 2011.

The Collaborative Law Institute formed a task force to work on this project, but the Institute needs each member to become involved in supporting and approving the UCLA's enactment. The potential enactment of the UCLA in Minnesota (and other states) is a milestone in the evolution of Collaborative Law, one that will likely catapult the use of Collaboration into orbit with other established and frequently utilized ADR processes. We ask that CLI members see this as an opportunity to influence the advancement of a process having national, and even global implications, and take the following action:

1. Read the article below to get an understanding of the purpose of the UCLA.
2. Attend a Regional Group Meeting in March and April to learn more about the UCLA and discuss it with your colleagues.
3. Attend a CLI-wide meeting in May to discuss and vote on whether CLI should actively support the passage of the UCLA at the Uniform Commissioners meeting in July, the ABA House of Delegates meeting in 2010 and the enactment of the UCLA in Minnesota during the 2011 legislative session.

We encourage you all to get involved in this endeavor, which is vital to the growth of Collaborative Practice (an added bonus: you will earn activity credits for attending meetings). Please join us in what could truly be the tipping point for Collaborative Divorce. Minnesota is the birthplace of Collaborative Law, so the rest of the world will be looking to our great state to pave the way to the next level of Collaborative Practice! We need your help, so please watch the CLI listserve, the CLI newsletter, and your mailbox (electronic and U.S. Mail) for more information.

Audra A. Holbeck, Esq., and Linda K. Wray, Esq.

UNIFORM COLLABORATIVE LAW ACT

This article will provide a broad overview of the important elements of the Uniform Collaborative Law Act.

Purpose of a Uniform Collaborative Law Act

The purpose of the Uniform Collaborative Law Act (UCLA) is to support the growth and development of Collaborative Law by making it more accessible and uniform. It is expected that "[m]aking collaborative law more broadly and uniformly available will give parties another choice of dispute resolution options to meet their needs. The act will thus increase the likelihood that disputes will be resolved earlier in their life cycle, at less economic and emotional cost."

The UCLA Seeks to Preserve the Autonomy of Clients

The UCLA provides only such minimal regulation as is necessary to inform and protect parties in the Collaborative process. The UCLA attempts to ensure clients provide informed consent to entering into the Collaborative process. Before signing a Participation Agreement, Collaborative lawyers are to inform a prospective client of the material benefits and risks of the Collaborative law process as compared to other processes including litigation. Collaborative lawyers also must specifically inform prospective clients that they may not seek tribunal intervention while in the Collaborative process, that their lawyer and lawyers in his/her law firm may not represent the client before a tribunal in the matter or substantially related matters, and that any party may unilaterally withdraw from the Collaborative process at any time.

The UCLA allows clients who have been victims of domestic abuse to exercise self-determination in deciding whether to proceed in the Collaborative process. The UCLA requires lawyers to use "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 to continue using reasonable efforts to assess whether domestic violence is occurring during the case. For those cases where a collaborative lawyer reasonably believes there is a history or presence of domestic violence, the lawyer may not begin or continue with a client in the collaborative process unless: (1) the party requests beginning or continuing in the collaborative process; (2) the lawyer reasonably believes the client's safety can be adequately protected during the 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; Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases; and Standards of Practice for Lawyers Who Represent Parents in Abuse and Neglect Cases.

The Act establishes bare bone requirements for Participation Agreements and allows for the creative design by collaborative lawyers and their clients of a process that is best suited to clients' needs. The comments to the Act are expected to specifically recognize the different models of Collaborative Law being practiced around the country and to express an interest in "stimulating diversity and experimentation in collaborative law".

Only parties are permitted to terminate the Collaborative process. Collaborative lawyers may not do so. However, a Collaborative lawyer may withdraw at any time for any reason. Collaborative lawyers are not required to provide a reason for their withdrawal.

Except for the Disqualification Provision, the Act is Not Intended to Regulate Lawyers and Other Collaborative Professionals

The UCLA requires all parties in a Collaborative process to have a Collaborative lawyer. The UCLA does not in any way alter the professional responsibility and obligations of Collaborative lawyers and licensed professionals engaged to work in the Collaborative process. Collaborative professionals continue to be governed by Rules of Professional Conduct or licensing standards of their profession.

The UCLA is premised on the view that Collaborative lawyers are engaging in "limited scope" representation pursuant to Rule 1.2 of the Rules of Professional Responsibility.

The Act does not set forth any training requirements for Collaborative lawyers or other Collaborative professionals. The drafting committee believed that training requirements would impermissibly intrude on the judiciary's supervision and regulation of lawyers.

In an effort to minimize concerns about conflict of interest, the Act does not require attorneys to sign the Participation Agreement. So as to identify the persons bound by the Act's requirements and privileges however, Collaborative attorneys must be identified in the Participation Agreement and acknowledge in it representation of their client in the Collaborative process.

The Act does not provide guidance regarding the transfer of a file to subsequent litigation counsel following the termination of a Collaborative case. Rather, Collaborative lawyers are to be governed by the Rules of Professional Responsibility.

It may be the case that some will question whether Section 12 of the Act requiring disclosures concerning collaborative law and screening for domestic violence borders on legislative regulation of lawyers or involves matters regarding "specialization".

The UCLA Applies to all Civil Matters

The UCLA does not limit the types of disputes that can be addressed through the Collaborative Law process. It is envisioned that business, employer-employee, customer-vendor, probate, medical malpractice and other types of disputes can be handled through the collaborative process.

The UCLA Maintains the Core Principles of Collaborative Law: Disqualification and Voluntary Disclosure

Disqualification
Collaborative lawyers and lawyers in the law firm with which the Collaborative lawyer is associated are disqualified from representing a party before a tribunal in the matter or a substantially related matter, both prior to and after any termination of the Collaborative process. This disqualification provision exists as a matter of law. Thus, even if a disqualification provision is inadvertently left out of a Participation Agreement, a court may require disqualification if it otherwise finds the parties signed a Participation Agreement evidencing an intent to participate in the Collaborative Law process and the parties believed they were participating in a Collaborative process.

There are three exceptions to the disqualification agreement that are being introduced through the UCLA:

(1) First, in Collaborative cases involving a low income client, only the Collaborative lawyer representing the low income client is disqualified rather than the entire law firm or organization with which the Collaborative lawyer is associated. This exception was brought to the drafting committee by the urging of representatives in the legal services field. The general fear was that if a firm or an organization were disqualified, the low-income party would not have access to litigation counsel. As a result, either the party would be denied representation, or the party would be unduly coerced into staying in the process against his or her interests.

(2) Second, in Collaborative cases involving a governmental entity, only the Collaborative lawyer representing the government is disqualified rather than the entire law department of the governmental entity. As with low income clients, without this exception the government would be without litigation counsel upon the termination of the Collaborative process. The consensus was that the Collaborative process should be available for use by the government. The exception makes this possible.

In these first two exceptions, once the Collaborative process has terminated the Collaborative lawyers must be isolated from any participation in the matter or substantially related matters through imposition of procedures within the law firm/law department.

(3) Third, where there is a need to seek an emergency order to protect the health, safety, welfare or interests of a party or family or household member as defined in state civil protection order statutes, a Collaborative lawyer may represent a client in court to obtain the emergency order. The ability to represent a party in emergency litigation is limited to the time necessary to protect the party, and the ability to represent terminates when successor counsel can be obtained. The drafting committee believes this exception is needed for a lawyer to fulfill his or her obligation under the Rules of Professional Responsibility, and is acceptable because it is a limited term exception with requirements that would not eviscerate the core principle of disqualification.

Full Disclosure

The UCLA requires that parties make timely, candid, full and informal disclosure of all information substantially related to a matter. This requirement exists as a matter of law.

The UCLA Contains Specific Communication Privilege Provisions Parties are holders of a privilege with respect to any collaborative communication.

The provisions of privilege are also extended to "nonparty participants," such as coaches, child specialists, and financial neutrals. Thus, the work of the team is not admissible unless the specific team member consents. In other words, a team member can prevent the parties from using his or her work done during the process.

Judicial Supervision is Stayed During Collaborative Process

For those cases that become Collaborative after filing, or those Collaborative cases in which a filing is needed for some reason, a Notice of Collaborative Law is to be filed, and the Notice operates as a stay of proceedings. A tribunal may require a status report in such cases; however, the report is limited to statements as to whether the Collaborative process is occurring or has terminated and whether or not an agreement has been reached.

Linda K. Wray is an observer to the Uniform Law Commission UCLA Drafting Committee for CLI.

Uniform Collaborative Law Act: The Drafting Process

The History and Purpose of Uniformity

In 1889 at its 12th annual meeting, the ABA decided to move toward uniformity in the state laws, thereby igniting the uniform law movement. The National Conference of Commissioners on Uniform State Laws (NCCUSL) was then formed in 1892, and by 1912, uniform law commissioners were appointed to each of the existing 44 states.

Today, the NCCUSL, also known as the Uniform Law Commission (ULC), is in its 116th year of providing states with "non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law." The ULC has produced more than 250 uniform acts, focusing on a variety of areas of law. Some of the most widely adopted and well-known uniform acts are the Uniform Commercial Code, Uniform Probate Act, Uniform Child Custody Jurisdiction Act, Uniform Interstate Family Support Act, Uniform Partnership Act and Uniform Limited Partnership Act.

The ULC is comprised of commissions from each state, the District of Columbia, Puerto Rico, and the Virgin Islands. Each state or jurisdiction determines its own method of appointment and the number of commissioners that are appointed, most commonly through statute. No commissioner receives a salary or fee for his or her work with the ULC. The one fundamental requirement is that commissioners be members of the bar. Therefore, a variety of legal backgrounds and areas of concentration exist among the more than 300 uniform law commissioners, consisting of practicing lawyers, judges, legislators and legislative staff and law professors.

From Ideas to Acts: The Procedure

Uniform acts begin as ideas pitched to the ULC's Committee on Scope and Program from the organized bar, state government entities, private interest groups, uniform law commissioners and private individuals. The Committee on Scope and Program hears the reasoning behind the ideas, does its own research, and then sends its recommendations to the Executive Committee for approval. If approved, a drafting committee is appointed from the membership of the ULC, as well as a committee chairperson and a reporter, who is typically an expert in the area of law. Each drafting committee is also assigned advisors and participating observers to assist in the process.

Each drafted act receives a minimum of two years consideration, but sometimes much longer. The meticulous process requires the drafting committees to meet throughout the year to draft, discuss and revise the act. The open process draws on the diverse expertise of the state-appointed commissioners, legal experts, and advisors and observers representing the views of other legal organizations or interests that will be subject to the proposed act.

Each act must be considered line by line, at no less than two annual meetings by all commissioners sitting as a Committee of the Whole. After the Committee of the Whole approves an act, there is a vote by states. There must be a majority of the states present, and no less than 20 states must approve an act. Following approval by the ULC, each act is considered by the ABA House of Delegates, which typically passes a resolution supporting or opposing the act. The resolution of the ABA House of Delegates, while important to enactability, is not binding on an act's ultimate enactability. The act is then sent to state legislatures for adoption into law. (The ULC only proposes acts. No uniform law is effective until a state legislature adopts it.)

An Inside "Observation" of the UCLA

In 2007, the ULC decided to draft a proposed Uniform Collaborative Law Act after determining that there was a need for uniformity among the states as Collaborative Practice continued to grow and expand throughout the nation. The ULC established a UCLA Drafting Committee and appointed Texas attorney Peter K. Munson as Chair and as Reporter, Andrew I. Schepard, Professor at Hofstra University School of Law. The Committee consists of 11 commissioners, four ABA advisors and approximately five observers from all over the country, representing a variety of legal backgrounds and ranging degrees of exposure to Collaborative Law, from extensive to zero.

One of the observers appointed to the UCLA Drafting Committee is Linda Wray, a Twin Cities Family Law attorney and former CLI president. Wray, who currently serves as the chair of the CLI's UCLA Task Force, has had the opportunity to participate in each step of drafting the UCLA thus far, and has provided some personal insight on the historic process.

How did the ULC decide to draft the UCLA?

LW: Harry Tindall, a Collaborative Law attorney in Texas and ULC Commissioner, began pitching the idea of a Uniform Collaborative Law to the ULC four or so years ago, trying to persuade the Committee on Scope and Program that there was a need for uniformity between the states, and that that need increased as the years went on. In 2007, the ULC agreed and decided that because of Collaborative Law's growth in the previous five years, a uniform act should be drafted.

How often does the Committee meet and what has been done?

LW: The Committee met for a weekend in April and October 2007 and January and November 2008, and met over the course of several days at the annual Uniform Law Commission meeting in July 2008. It will meet again at the 2009 ULC annual meeting. Discussion drafts were circulated before and after the sessions. The UCLA was read line by line before all Commissioners at the ULC July 2008 meeting, and revised in subsequent drafts in light of the comments received.

What is the next step of the process?

LW: The UCLA will have a second reading at the ULC annual meeting in July 2009. It is expected to be approved, and if so, will go on to the ABA House of Delegates for its approval in February 2010. It will then be disseminated to the states for legislative enactment [likely in January 2011].

What was the dynamic of the UCLA Drafting Committee like?

LW: Each member played a unique and significant role in the development of the Act. Most of the observers were Collaborative lawyers. Although Observers could not vote on matters, Observers fully participated in all discussions and our views were considered along with views of the Commissioners and ABA Advisers. Commissioner Byron Sher [former Stanford University contracts law professor and California state legislator] was indispensable to the development of the structure of the Act and its internal consistency. As a contracts law professor he was particularly helpful in drafting the section on the Participation Agreement, so as to minimize unintended consequences from professionals' signing of a contract. Commissioner Elizabeth Kent of Hawaii was also an important voice. She was a member of the drafting Committee for the Uniform Mediation Act, and provided many helpful suggestions for the UCLA based on provisions in the UMA. Because the UMA was approved by the ULC and ABA House of Delegates, the incorporation of similar provisions in the UCLA where appropriate will increase the chances it too will be approved by both bodies. Andy Schepard, the reporter, worked tirelessly to produce many, many drafts of the UCLA, each one improving on the former. With several drafts he sent out memos identifying issues that required analysis and consensus, and had his law students draft memorandums of law on numerous issues which served to inform the committee. The variety of perspectives expressed at meetings and occasionally between meetings in email communications resulted in vigorous discussions and some disagreement. The Committee however, was unified in its desire to draft a solid enactable Act.

What were the main factors that the Committee considered when drafting the Act?

LW: One important guiding principle was to draft an Act that would allow parties to continue to fully contribute to the creative design of the process. As a result of this, the Act has only bare bones requirements for Participation Agreements. Collaborative lawyers and their clients may continue to create a process best suited to the clients' needs. Enactability was also another guiding principle in the drafting of the Act. It is important that the Act be one that various legal organizations and communities could support. In the end, both these principles led to the creation of an Act that is simple and basic.

What has been the most interesting or surprising aspect of the drafting experience thus far?

LW: The sense of collegiality that developed among the group. There was a real commitment toward the product. It was very interesting listening to the different views expressed at meetings and hearing perspectives that, up until this point, I had never considered in the context of Collaborative Law. It was also fun to socialize and visit with people about their own professional journeys.

Kellie Bigham, 2nd year law student, University of St. Thomas Law School