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421

UNIFORM COLLABORATIVE LAW ACT

Drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS

UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT

IN ALL THE STATES

at its

ANNUAL CONFERENCE

MEETING IN ITS ONE-HUNDRED-AND-EIGHTEENTH YEAR

IN SANTA FE, NEW MEXICO

JULY 9-16, 2009

With Prefatory Note and Comments

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

422 HOFSTRA LAW REVIEW [Vol. 38:421

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, 123 S. Travis St., Sherman, TX 75090, Chair

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

CAM WARD, 124 Newgate Rd., Alabaster, AL 35007

ANDREW SCHEPARD, Hofstra University School of Law, 121 Hofstra

University, Hempstead, NY 11549, 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,

Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

CARLTON D. STANSBURY, 10850 W. Park Pl., Suite 530,

Milwaukee, WI 53224, ABA Advisor

LAWRENCE R. MAXWELL, JR., Douglas Plaza, 8226 Douglas Ave.,

Suite 550, Dallas, TX 75225, ABA Section Advisor

CHARLA BIZIOS STEVENS, 900 Elm St., P.O. Box 326, Manchester,

NH, 03105, ABA Section Advisor

GRETCHEN WALTHER, 6501 Americas Pkwy. NE, Suite 620,

Albuquerque, NM 87110, ABA Section Advisor

* Professor Schepard thanks Yishai Boyarin, Hofstra University School of Law L.L.M.

2009; Elizabeth Bruzzo and Rebecca Miller, Hofstra University School of Law J.D. 2007; Laura

Daly, Hofstra University School of Law J.D. 2008; Angela Burton, Jesse Lubin, Joshua Rieger, and

Brittany Shrader, Hofstra University School of Law J.D. 2009; and Mary Ann Harvey, Ashley

Lorance, Beyza Killeen, and Jessie Fillingim, Hofstra University School of Law J.D. 2010, for their

invaluable and ongoing research assistance. He also thanks Michael de Matos, Editor-in-Chief, and

the editorial board and staff of Volume 38 of the Hofstra Law Review for their essential help on the

final version of the act.

2009] UNIFORM COLLABORATIVE LAW ACT 423

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, IL 60602

(312) 450-6600

www.nccusl.org

424 HOFSTRA LAW REVIEW [Vol. 38:421

UNIFORM COLLABORATIVE LAW ACT

TABLE OF CONTENTS

PREFATORY

NOTE ........................................................................... 425

SECTION

1. SHORT TITLE................................................................ 467

SECTION

2. DEFINITIONS................................................................ 467

SECTION

3. APPLICABILITY. .......................................................... 474

SECTION

4. COLLABORATIVE LAW PARTICIPATION

AGREEMENT; REQUIREMENTS .......................................... 474

SECTION

5. BEGINNING AND CONCLUDING A

COLLABORATIVE LAW PROCESS...................................... 476

SECTION

6. PROCEEDINGS PENDING BEFORE TRIBUNAL;

STATUS REPORT .................................................................... 478

SECTION

7. EMERGENCY ORDER DURING A

COLLABORATIVE LAW PROCESS...................................... 480

SECTION

8. APPROVAL OF AGREEMENT BY TRIBUNAL. ........ 481

SECTION

9. DISQUALIFICATION OF COLLABORATIVE

LAWYER AND LAWYERS IN ASSOCIATED LAW

FIRM ......................................................................................... 481

SECTION

10. LOW-INCOME PARTIES............................................ 482

SECTION

11. GOVERNMENTAL ENTITY AS PARTY .................. 483

SECTION

12. DISCLOSURE OF INFORMATION ........................... 483

SECTION

13. STANDARDS OF PROFESSIONAL

RESPONSIBILITY AND MANDATORY REPORTING

NOT AFFECTED. ..................................................................... 483

SECTION

14. APPROPRIATENESS OF COLLABORATIVE

LAW PROCESS. ....................................................................... 484

SECTION

15. COERCIVE OR VIOLENT RELATIONSHIP............. 484

SECTION

16. CONFIDENTIALITY OF COLLABORATIVE

LAW COMMUNICATION....................................................... 485

SECTION

17. PRIVILEGE AGAINST DISCLOSURE FOR

COLLABORATIVE LAW COMMUNICATION;

ADMISSIBILITY; DISCOVERY. ............................................ 485

SECTION

18. WAIVER AND PRECLUSION OF PRIVILEGE......... 488

SECTION

19. LIMITS OF PRIVILEGE .............................................. 488

SECTION

20. AUTHORITY OF TRIBUNAL IN CASE OF

NONCOMPLIANCE................................................................. 491

SECTION

21. UNIFORMITY OF APPLICATION AND

CONSTRUCTION .................................................................... 492

SECTION

22. RELATION TO ELECTRONIC SIGNATURES IN

GLOBAL AND NATIONAL COMMERCE ACT.................... 492

SECTION

23. SEVERABILITY .......................................................... 493

SECTION

24. EFFECTIVE DATE ...................................................... 493

2009] UNIFORM COLLABORATIVE LAW ACT 425

UNIFORM

COLLABORATIVE LAW ACT

Prefatory Note

Overview

This prefatory note is designed to facilitate understanding of the Uniform

Collaborative Law Act by:

• providing an overview of what collaborative law is, its growth and

development, and its benefits to parties, the public, and the legal

profession;

• summarizing main provisions of the Uniform Collaborative Law Act;

• discussing the major policy issues addressed during the act’s

development and drafting—for example, appropriate scope of

regulation, informed consent, and domestic violence; and

• identifying the reasons why the Uniform Collaborative Law Act should

be a uniform act.

The text of the act, with comments on specific sections, follows this

prefatory note. The comments address the purpose of a specific section and

issues in the drafting and interpretation of that section.

Collaborative Law—An Overview

Definition

Collaborative law is a voluntary, contractually based alternative dispute

resolution (“ADR”) process for parties who seek to negotiate a resolution of

their matter rather than having a ruling imposed upon them by a court or

arbitrator. The distinctive feature of collaborative law, as compared to other

forms of ADR such as mediation, is that parties are represented by lawyers

(“collaborative lawyers”) during negotiations. Collaborative lawyers do not

represent the party in court, but only for the purpose of negotiating agreements.

The parties agree in advance that their lawyers are disqualified from further

representing parties by appearing before a tribunal if the collaborative law

process ends without complete agreement (“disqualification requirement”). See

William H. Schwab, Collaborative Lawyering: A Closer Look at an Emerging

Practice, 4 P

EPP. DISP. RESOL. L.J. 351, 358 (2004). Parties thus retain

collaborative lawyers for the limited purpose of acting as advocates and

counselors during the negotiation process.

The Collaborative Law Participation Agreement

The basic ground rules for collaborative law are set forth in a written

agreement (“collaborative law participation agreement”) in which parties

designate collaborative lawyers and agree not to seek tribunal (usually judicial)

resolution of a dispute during the collaborative law process. Pauline H. Tesler,

Collaborative Family Law, 4 P

EPP. DISP. RESOL. L.J. 317, 319 (2004). The

participation agreement also provides that if a party seeks judicial intervention,

or otherwise terminates the collaborative law process, the disqualification

426 HOFSTRA LAW REVIEW [Vol. 38:421

requirement takes effect. Id. at 319-20. Parties agree that they have a mutual

right to terminate collaborative law at any time without giving a reason.

Positional and Problem-Solving Negotiations and the Disqualification

Requirement

The goal of collaborative law is to encourage parties to engage in

“problem-solving” rather than “positional” negotiations. See R

OGER FISHER ET

., GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 4-14 (2d

ed. 1991). Under a positional approach to negotiation, the parties see the

negotiation process as a contest to be won by one side at the expense of the

other. Id. at 6. Parties to positional negotiations often assume an extreme

starting position, and make small concessions within their predetermined

bargaining range usually in response to concessions made by the other side or

threats. Id. If they do not find a meeting point of agreement between their

positions, negotiations break down and litigation ensues. J

ULIE MACFARLANE,

THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF

LAW 81-84 (2008) [hereinafter MACFARLANE, NEW LAWYER].

In contrast, parties who follow a problem-solving, or what is sometimes

referred to as interest-based approach to negotiation promoted by collaborative

law, view a dispute as the parties’ joint problem that needs to be solved. Carrie

Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of

Problem Solving, 31 UCLA

L. REV. 754, 759-60 (1984). Under this approach,

the negotiation process focuses on the parties’ underlying “needs, desires,

concerns, and fears” and not only on the parties’ articulated positions. F

ISHER ET

., supra, at 40. A problem-solving approach assumes that “[b]ehind opposed

positions lie shared and compatible interests, as well as conflicting ones,” and

that looking at interests rather than positions is beneficial because “for every

interest there usually exist several possible positions that could satisfy it.”

Id. at

42. Accordingly, a problem-solving negotiator focuses on “finding creative

solutions that maximize the outcome for both sides.” Peter Robinson,

Contending with Wolves in Sheep’s Clothing: A Cautiously Cooperative

Approach to Mediation Advocacy, 50 B

AYLOR L. REV. 963, 965 (1998).

Lawyers can and do, of course, encourage clients to engage in problem-

solving negotiations without formally labeling the process collaborative law.

The distinctive feature of collaborative law is, however, the disqualification

requirement—the enforcement mechanism that parties create by contract to

ensure that problem-solving negotiations actually occur. The disqualification

requirement enables each party to penalize the other party for unacceptable

negotiation behavior if the party who wants to end the collaborative law process

is willing to assume the costs of engaging new counsel. “[E]ach side knows at

the start that the other has similarly tied its own hands by making litigation

expensive. By hiring two Collaborative Law practitioners, the parties send a

powerful signal to each other that they truly intend to work together to resolve

their differences amicably through settlement.” Scott R. Peppet, The Ethics of

Collaborative Law, 2008 J.

DISP. RESOL. 131, 133.

Because of these mutually agreed upon costs of failure to agree,

collaborative law is a modern method of addressing the age old dilemma for

2009] UNIFORM COLLABORATIVE LAW ACT 427

parties to a negotiation of assuring that “one’s negotiating counterpart is and

will continue to be a true collaborator rather than a ‘sharpie.’” Ted Schneyer,

The Organized Bar and the Collaborative Law Movement: A Study in

Professional Change, 50 A

RIZ. L. REV. 289, 327 (2008). It solves the age old

problem for negotiators of deciding whether to cooperate or compete in a

situation where each side does not know the other’s intentions and “when the

pursuit of self-interest by each leads to a poor outcome for all”—the famous

“Prisoner’s Dilemma” of game theory.

ROBERT ALEXROD, THE EVOLUTION OF

COOPERATION 7 (1984).

Multiple Models of Collaborative Law Practice

To encourage problem-solving negotiations, collaborative lawyers

emphasize that no threats of litigation should be made during a collaborative

law process and the need to maintain respectful dialogue. See

GLOBAL

COLLABORATIVE LAW COUNCIL, PARTICIPATION AGREEMENT 3 (2004),

available at http://www.collaborativelaw.us/articles/GCLC_Participation_

Agreement_With_Addendum.pdf. Parties in collaborative law generally agree

to disclose information voluntarily, without formal discovery requests, and to

supplement responses to information requests previously made with material

changes. See id. at 4. Many models of collaborative law require parties to

engage jointly retained mental health and financial professionals in advisory and

neutral roles—for example, a divorce coach, appraiser, and child’s

representative—rather than as consultants or trial witnesses hired by one party

but not the other.

FORREST S. MOSTEN, COLLABORATIVE DIVORCE HANDBOOK:

HELPING FAMILIES WITHOUT GOING TO COURT 106-07 (2009); See John Lande,

Possibilities for Collaborative Law: Ethics and Practice of Lawyer

Disqualification and Process Control in a New Model of Lawyering, 64 O

HIO

ST. L.J. 1315, 1321 n.13 (2003) [hereinafter Lande, Possibilities for

Collaborative Law]. Sometimes, collaborative law participation agreements

require that negotiations take place in meetings in which parties are the primary

negotiators and their lawyers encourage focusing on underlying interests,

sharing information, and brainstorming solutions to problems. G

LOBAL

COLLABORATIVE LAW COUNCIL, supra, at 2-3. Typically, in order to promote

problem-solving negotiations, collaborative law participation agreements

provide that communications during the collaborative law process are

confidential and cannot be introduced as evidence in court. See id. at 4-5; see

also N.Y.

Ass’n of Collaborative Professionals, Collaborative Law Participation

Agreement, http://collaborativelawny.com/participation_agreement.php (last

visited May 25, 2010).

Collaborative Law Compared to Mediation

Mediation and collaborative law are both valuable ADR processes that

share common characteristics. They do have differences that might make one

process more or less attractive to parties. Both collaborative law and mediation

offer parties the benefits of a process to promote agreement through private,

confidential negotiations, the promise of cost reduction, and the potential for

better relationships. Both mediation and collaborative law encourage voluntary

428 HOFSTRA LAW REVIEW [Vol. 38:421

disclosure and an ethic of fair dealing between parties. Parties in both mediation

and collaborative law are likely to experience greater voice in the process of

settlement than in a judicial resolution (self-determination) and are more likely

to be satisfied with the process as compared to litigation. See Chris Guthrie &

James Levin, A “Party Satisfaction” Perspective on a Comprehensive

Mediation Statute, 13 O

HIO ST. J. ON DISP. RESOL. 885, 891 (1998).

Mediation and collaborative law do, however, have differences which

might make collaborative law more or less attractive to some parties as a dispute

resolution option. A neutral is not present during collaborative law process

negotiation sessions unless agreed to by the parties, while mediation sessions

are facilitated by a neutral third party. M

ODEL STANDARDS OF CONDUCT FOR

MEDIATORS pmbl. (2005). As will be discussed infra, parties can participate in

mediation without counsel but cannot do so in collaborative law. In many states

parties do not have the protection of mediators being a licensed and regulated

profession and bound by its rules of professional responsibility. Collaborative

lawyers, in contrast, are licensed and regulated members of the legal profession.

Mediators, as neutrals, cannot give candid legal advice to a party while

collaborative lawyers can. Mediators, as neutrals, are also constrained in

redressing imbalances in the knowledge and sophistication of parties. See, e.g.,

ULES OF THE CHIEF ADMIN. JUDGE, 30 N.Y. Reg. 93 (July 30, 2008) (detailing

the neutrality requirement for mediators in New York); id. § II(B) (“A mediator

shall conduct a mediation in an impartial manner and avoid conduct that gives

the appearance of partiality.”); M

ODEL STANDARDS OF PRACTICE FOR FAMILY &

DIVORCE MEDIATION § IV (2000) (“A family mediator shall conduct the

mediation process in an impartial manner.”). Despite their limited purpose of

representation in negotiating a resolution of a dispute, collaborative lawyers are

not neutrals but are advocates for their clients.

These kinds of considerations might make parties opt for collaborative law

over mediation for resolution of their dispute or vice versa. Collaborative law is

an attractive dispute resolution option for many parties, especially those who

wish to maintain post dispute relationships with each other and minimize the

costs of dispute resolution. Parties may prefer it to traditional full service

representation by lawyers, which includes both settlement negotiations and

representation in court, because of its reduced costs and incentives for lawyers

to work hard to produce acceptable compromise while still providing the party

with the support of an advocate.

Collaborative Law’s Growth and Development

The concept of collaborative law was first described by Minnesota lawyer

Stu Webb approximately eighteen years ago in the context of representation in

divorce proceedings, the leading subject area for collaborative law practice

today. Stu Webb, Collaborative Law: An Alternative for Attorneys Suffering

‘Family Law Burnout,’ M

ATRIMONIAL STRATEGIST, July 2000, at 7, 7. Since

then, collaborative law has matured and emerged as a viable option on the

continuum of choices of dispute resolution processes available to parties to

attempt to resolve a matter. Examples of its growth and development include:

2009] UNIFORM COLLABORATIVE LAW ACT 429

• Roughly 22,000 lawyers worldwide have been trained in collaborative

law. Telephone Interview by Ashley Lorance with Talia Katz,

Executive Dir., Int’l Acad. of Collaborative Prof’ls (Feb. 17, 2009) (on

file with Reporter) [hereinafter Interview with Talia Katz]; see also

Christopher M. Fairman, A Proposed Model Rule for Collaborative

Law, 21 O

HIO ST. J. ON DISP. RESOL. 73, 83 (2005) (noting that there

are “more than 4,500 lawyers trained in collaborative law” nationwide

(citing Jane Gross, Amiable Unhitching, with a Prod, N.Y.

TIMES, May

20, 2004, at F1)).

• Collaborative law has been used to resolve thousands of cases in the

United States, Canada, and elsewhere. Christopher M. Fairman,

Growing Pains: Changes in Collaborative Law and the Challenge of

Legal Ethics, 30 C

AMPBELL L. REV. 237, 239 (2008) [hereinafter

Fairman, Growing Pains].

• The International Association of Collaborative Professionals (IACP),

the umbrella organization for collaborative lawyers, has more than

3,600 lawyer members. Interview with Talia Katz, supra.

• Collaborative law practice associations and groups have been

organized in virtually every state in the nation and in several foreign

jurisdictions. See IACP, Collaborative Practice Groups,

http://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups

(last visited May 25, 2010).

• A number of states have enacted statutes of varying length and

complexity which recognize and authorize collaborative law. See, e.g.,

AL. FAM. CODE § 2013 (West 2004 & Supp. 2009) (defining

“collaborative law process” and authorizing parties to agree in writing

to use of the process); N.C.

GEN. STAT. §§ 50-70 to -79 (2007)

(authorizing the use of collaborative law as “an alternative to judicial

disposition of issues arising in a civil action”); T

EX. FAM. CODE ANN.

§ 153.0072 (Vernon 2008) (governing collaborative law agreements

for parent-child relationship); TEX. FAM. CODE ANN. § 6.603 (Vernon

2006) (governing collaborative law agreements for divorcing parties).

• A number of courts have taken similar action through enactment of

court rules. See, e.g., M

INN. R. 111.05, 304.05 (2008) (defining

collaborative law and detailing scheduling and application of additional

ADR requirements);

CONTRA COSTA COUNTY, CAL., LOCAL CT. R.

12.5 (“Contra Costa County Superior Court strongly supports the use

of the collaborative law process . . . .”); L.A.

COUNTY, CAL., LOCAL

CT. R. 14.26 (detailing the designation, contested matters, and

termination of collaborative law cases); S.F. COUNTY, CAL., LOCAL

CT. R. 11.17(B), (E) (including collaborative law in its definition of

ADR procedures and specifying the requirements for its use); S

ONOMA

COUNTY, CAL., LOCAL CT. R. 9.26 (“Sonoma County Superior Court

strongly supports the use of the collaborative law process . . .

.”); LA.

DIST. CT. R. tit. IV, ch. 39, R. 39.0 (defining collaborative divorce

procedures in Louisiana’s twenty-fourth judicial district court); U

TAH

430 HOFSTRA LAW REVIEW [Vol. 38:421

R. JUD. ADMIN. 4-510 (2009) (defining collaborative law and outlining

the responsibilities of ADR providers).

• The first empirical research on collaborative law found generally high

levels of client and lawyer satisfaction with the process and that

negotiation under collaborative law participation agreements is more

problem-solving and interest-based than those in the more traditional

adversarial framework. See J

ULIE MACFARLANE, DEP’T OF JUSTICE OF

CAN., THE EMERGING PHENOMENON OF COLLABORATIVE FAMILY LAW

(CFL): A QUALITATIVE STUDY OF CFL CASES 57, 77-78 (2005)

available at http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/

2005/2005_1/pdf/2005_1.pdf [hereinafter M

ACFARLANE, EMERGING

PHENOMENON]; see also MARK SEFTON, COLLABORATIVE FAMILY

LAW: A REPORT FOR RESOLUTION 43-48 (2009) (noting similar

findings in first empirical evaluation of cases in collaborative law

process in England and Wales); Julie Macfarlane, Experiences of

Collaborative Law: Preliminary Results from the Collaborative

Lawyering Research Project, 2004 J.

DISP. RESOL. 179, 200. It found

no evidence that “weaker” parties fared worse in collaborative law than

in adversarial based negotiations. M

ACFARLANE, EMERGING

PHENOMENON supra, at 57, 77.

• Former Chief Judge Judith S. Kaye of New York established the first

court-based Collaborative Family Law Center in the nation in New

York City. J

UDITH S. KAYE, N.Y. STATE UNIFIED COURT SYS., THE

STATE OF THE JUDICIARY 11 (2007). In announcing the Center, Chief

Judge Kaye stated: “[w]e anticipate that spouses who choose this

approach will find that the financial and emotional cost of divorce is

reduced for everyone involved—surely a step in the right direction.”

Id. at 12. The Center began operations on September 1, 2009. Press

Release, Ann Pfau, Chief Admin. Judge, N.Y. State Unified Family

Court Sys., Collaborative Family Law Center to Make Divorce Process

Easier New Center to Reduce Stress, Expense and Time Involved in

Matrimonial Cases (Sept. 1, 2009), available at

http://www.courts.state.ny.us/press/pr2009_15.shtml.

• The American Bar Association (“ABA”) Dispute Resolution Section

has organized a Committee on Collaborative Law. Am. Bar Ass’n,

Collaborative Law Committee, http://www.abanet.org/dch/

committee.cfm?com=DR035000 (last visited May 25, 2010). The

Collaborative Law Committee has an active Ethics Subcommittee

engaged in the codification of the standards of practice for

collaborative lawyers. S

UMMARY OF ETHICS RULES GOVERNING

COLLABORATIVE LAW 3 (2008) (discussing the ways in which

“[c]ollaborative [p]ractice is consistent with the rules of ethics for

lawyers” and is an important method for achieving fair settlements).

• Collaborative law is developing worldwide. Australia, Austria, Canada,

the Czech Republic, France, Germany, Ireland, Israel, New Zealand,

Switzerland, Uganda, and the United Kingdom all report collaborative

2009] UNIFORM COLLABORATIVE LAW ACT 431

law activity. Robert Miller, How We Can All Get Along, DALLAS

MORNING NEWS, Sept. 3, 2008, at 2D. For example:

o Collaborative law has grown rapidly in Canada since its

introduction in 2000—from 75 lawyers trained in

collaborative practice to more than 2,800 in 2009. Susan Pigg,

Collaboration, Not Litigation: Many Divorcing Couples Are

Sitting Down Together, Along with Their Lawyers, to Hammer

Out Agreements, T

ORONTO STAR, Jan. 28, 2009, at L01.

o Despite only being introduced to Australia in 2003,

collaborative law has experienced rapid growth. F

AMILY LAW

COUNCIL, COLLABORATIVE PRACTICE IN FAMILY LAW: A

REPORT TO THE ATTORNEY-GENERAL PREPARED BY THE

FAMILY LAW COUNCIL 27-33 (2006). The Family Law

Council Report, released by Attorney-General Philip Ruddock

in April 2007, hypothesized that “collaborative law ha[d] the

potential to deliver ongoing benefits to the public.” Sue

Purdon, Divorcing with Dignity, C

OURIER MAIL (Austl.), Apr.

13, 2007, at 26. Approximately 400 lawyers have been trained

in collaborative law from 2005 to 2007. Id.

o Britain’s leading family judges and lawyers began a campaign

to encourage divorcing couples to participate in collaborative

law. Frances Gibb, Family Judges Campaign to Take the

Bitterness and Costs Out of Divorce, T

IMES (London), Oct. 4,

2007, at 2. About 1,200 lawyers have been trained in

collaborative law in England since its introduction in 2003.

EFTON, supra, at 3.

o As of May 2008, about 600 Irish lawyers have been trained in

collaborative law. Carol Coulter, New Form of Law Aims to

Meet Wider Human Needs, I

RISH TIMES, May 5, 2008, at 4.

When Ireland hosted the second European Collaborative Law

Conference in May 2008 the Republic of Ireland’s President,

Mary McAleese, announced that collaborative law was the

preferred method of dispute resolution in Ireland. Miller,

supra.

• Many professionals from other disciplines, especially financial

planning and psychology, have been trained to participate in

collaborative law. See Gary L. Voegele et al., Collaborative Law: A

Useful Tool for the Family Law Practitioner to Promote Better

Outcomes, 33 W

M. MITCHELL L. REV. 971, 976 (2007) (citing PAULINE

H. TESLER & PEGGY THOMPSON, COLLABORATIVE DIVORCE: THE

REVOLUTIONARY NEW WAY TO RESTRUCTURE YOUR FAMILY,

RESOLVE LEGAL ISSUES, AND MOVE ON WITH YOUR LIFE 41-50

(2006)).

• Numerous articles have been written about collaborative law in

scholarly journals. See generally Gay G. Cox & Robert J. Matlock, The

Case for Collaborative Law, 11 T

EX. WESLEYAN L. REV. 45 (2004)

(arguing that collaborative law be the default method of family dispute

432 HOFSTRA LAW REVIEW [Vol. 38:421

resolution); Christopher M. Fairman, Ethics and Collaborative

Lawyering: Why Put Old Hats on New Heads, 18 O

HIO ST. J. ON DISP.

RESOL. 505 (2003) (suggesting the need for new ethical guidelines to

encompass the innovative practice of collaborative lawyering);

Fairman, Growing Pains, supra (discussing the tension between

collaborative law and lawyer’s ethics); Joshua Isaacs, A New Way to

Avoid the Courtroom: The Ethical Implications Surrounding

Collaborative Law, 18 G

EO. J. LEGAL ETHICS 833 (2005) (suggesting

that new ethical standards are necessary to add credibility and clarity to

the collaborative law process); Michaela Keet et al., Client

Engagement Inside Collaborative Law, 24 C

AN. J. FAM. L. 145 (2008)

(exploring clients’ experiences within the collaborative law process);

John Lande & Gregg Herman, Fitting the Forum to the Family Fuss:

Choosing Mediation, Collaborative Law, or Cooperative Law for

Negotiating Divorce Cases, 42 F

AM. CT. REV. 280 (2004) (analyzing

the differences between mediation, collaborative, and cooperative law);

Lande, Possibilities for Collaborative Law, supra (considering whether

disqualification agreements, common in collaborative law, may violate

ethical norms and harm clients); John Lande, Principles for

Policymaking About Collaborative Law and Other ADR Processes, 22

HIO ST. J. ON DISP. RESOL. 619 (2007) (discussing the types of

substantive policy options that policymakers should adopt when

dealing with ADR processes); James K. L. Lawrence, Collaborative

Lawyering: A New Development in Conflict Resolution, 17 O

HIO ST. J.

DISP. RESOL. 431 (2002) (encouraging lawyers to incorporate

collaborative law into every day practice and dispute resolution);

Lawrence P. McLellan, Expanding the Use of Collaborative Law:

Consideration of Its Use in a Legal Aid Program for Resolving Family

Law Disputes, 2008 J.

DISP. RESOL. 465 (exploring the use of

collaborative law in legal aid settings with predominate family law

issues);

Forrest S. Mosten, Collaborative Law Practice: An Unbundled

Approach to Informed Client Decision Making, 2008 J. DISP. RESOL.

163 [hereinafter Mosten, Collaborative Law Practice] (exploring the

creation and development of collaborative law and unbundled legal

services); Peppet, supra (suggesting that collaborative lawyers need to

be careful about their practice in order to withstand ethical scrutiny);

Scott R. Peppet, Lawyers’ Bargaining Ethics, Contract, and

Collaboration: The End of the Legal Profession and the Beginning of

Professional Pluralism, 90 I

OWA L. REV. 475 (2005) (suggesting the

need for ethics to assist clients in sorting between honest collaborators

and manipulative adversaries); Schneyer, supra (considering the

mainstream bar’s response to collaborative law and the development of

specialized inter-professional association within the collaborative

process); Sherri Goren Slovin, The Basics of Collaborative Family

Law: A Divorce Paradigm Shift, 18 A

M. J. FAM. L. 74 (2004)

(providing an overview of the basic principles of the collaborative

process); Larry R. Spain, Collaborative Law: A Critical Reflection on

2009] UNIFORM COLLABORATIVE LAW ACT 433

Whether a Collaborative Orientation Can Be Ethically Incorporated

into the Practice of Law, 56 B

AYLOR L. REV. 141 (2004) (suggesting a

need for ethical standards in order to facilitate the practice of

collaborative problem-solving); Pauline H. Tesler, Collaborative Law:

A New Paradigm for Divorce Lawyers, 5 P

SYCHOL. PUB. POL’Y & L.

967 (1999) (suggesting that collaborative law is less emotionally

draining than adversarial practice, especially in the realm of family

law); Voegele et al., supra (discussing the history and distinct features

of the collaborative law process); Stu Webb, Collaborative Law: A

Practitioner’s Perspective on Its History and Current Practice, 21 J.

AM. ACAD. MATRIM. LAW 155 (2008) (reflecting on the creation and

development of collaborative law); Brian Roberson, Comment, Let’s

Get Together: An Analysis of the Applicability of the Rules of

Professional Conduct to Collaborative Law, 2007 J.

DISP. RESOL. 255

(exploring the intersection of collaborative law and the Model Rules of

Professional Conduct and discussing the differences among state ethics

committees’ commentary on collaborative law); Elizabeth K.

Strickland, Comment, Putting “Counselor” Back in the Lawyer’s Job

Description: Why More States Should Adopt Collaborative Law

Statutes, 84 N.C.

L. REV. 979 (2006) (proposing a statute for state

adoption so that collaborative law can be more frequently utilized in

dispute resolution).

• Numerous articles have also been written about collaborative law in the

popular press. See generally Michelle Conlin, Good Divorce, Good

Business: Why More Husband-and-Wife Teams Keep Working

Together After They Split, B

US. WK., Oct. 31, 2005, at 90 (discussing

how divorcing couples are shifting to collaborative law to retain assets

and jointly run businesses); Carol Coulter, Non-Adversarial System

‘Will Replace the Courts’ to Resolve Family Law Disputes, I

RISH

TIMES, May 3, 2008, at 8 (suggesting that collaborative dispute

resolution will eventually replace the adversarial process in family law

problems); Clare Dyer, Law: Round-Table Divorce Is Faster, Cheaper

and Friendlier, G

UARDIAN (London), Nov. 27, 2006, at 14 (reporting

on the history and expansion of collaborative law in the United

Kingdom); Mary Flood, Legal Trade: Collaborative Law Can Make

Divorces Cheaper, Civilized, H

OUS. CHRON., June 4, 2007, at 1

(reporting on the history and growth of collaborative law in the

matrimonial sector); Carla Fried, Getting a Divorce? Why It Pays to

Play Nice: Collaborative Divorce Offers Splitting Spouses a Kinder,

Less Expensive Way to Say “I Don’t,” M

ONEY, July 2005, at 48

(describing how collaborative law can save divorcing couples money);

Katti Gray, Collaborative Divorce: There’s a Kinder, Simpler—And

Less Expensive—Way to Untie the Knot, N

EWSDAY (Long Island), Aug.

15, 2005, at B10 (discussing the advantages of the collaborative law

process in divorce); Gross, supra, (discussing how collaborative law is

an interest-based solution for divorcing couples that can save them

time, money, and misery); Melissa Harris, Same Split with a Lot Less

434 HOFSTRA LAW REVIEW [Vol. 38:421

Spat: Howard Teams Guide Collaborative Divorce, BALTIMORE SUN,

Oct. 5, 2007, at 1A (reporting on the growing amounts of collaborative

divorces in Maryland); Rosanne Michie, Curing a Splitting Headache,

ERALD SUN (Austl.), Feb. 25, 2008, at 30 (reporting that the

Australian Family Law Act and Rules were amended to require

divorcing couples to resolve disputes through alternative resolutions,

such as collaborative law); Pigg, supra (reporting on the introduction

of collaborative law in Canada); Jon Robins, At Last: A Divorce

Process for Adults, O

BSERVER (Eng.), Dec. 30, 2007, at 12

(anticipating that collaborative law will become the norm for divorcing

parties in the United Kingdom); Janet Kidd Stewart, Collaboration Is

Critical: Couples Find That Breaking Up Doesn’t Have to Mean

Breaking the Bank, C

HI. TRIB., Feb. 9, 2005, at 3 (describing how

collaborative law can save divorcing couples money); The Today Show

(NBC television broadcast Jan. 17, 2006), available at

http://www.collaborativelawny.com/today_show.php (broadcasting

Ann Curry, collaborative lawyers, and their clients discussing

collaborative divorce).

Collaborative Law Outside of Divorce and Family Disputes

Collaborative Law has thus far found its greatest use and acceptance in

family and divorce disputes. Efforts are, however, underway to expand its use in

matters outside of divorce and family practice. See Kathy A. Bryan, Why Should

Businesses Hire Settlement Counsel?, 2008 J. D

ISP. RESOL. 195, 196 (stating

that “[collaborative law] techniques should be added to the business dispute

resolution toolbox”); R. Paul Faxon & Michael Zeytoonian, Prescription For

Sanity in Resolving Business Disputes: Civil Collaborative Practice in a

Business Restructuring Case, C

OLLABORATIVE L.J., Fall 2007, at 2, 2-3

(illustrating the use of collaborative law in shareholder disputes). See generally

HERRIE R. ABNEY, AVOIDING LITIGATION: A GUIDE TO CIVIL COLLABORATIVE

LAW (2005) (recounting her own experiences practicing collaborative law in

Texas and expressing the need to expand the practice beyond family matters). In

January 2009, the Global Collaborative Law Council was formed to expand the

use of collaborative law in areas outside of family and divorce law. Global

Collaborative Law Council, About GCLC, http://www.collaborativelaw.us/

about.html (last visited May 25, 2010).

Collaborative Law’s Benefits to Parties and the Public

Experience to date indicates that collaborative law is a valuable dispute

resolution for those parties who choose to participate in it with informed

consent. Like other ADR processes, collaborative law reduces the costs of

dispute resolution for parties and emphasizes the importance of party self-

determination. Collaborative law also has significant benefits to the public by

saving scarce judicial resources, in promoting peaceful, durable resolution of

disputes and a positive view of the civil justice system by participants and the

general public.

2009] UNIFORM COLLABORATIVE LAW ACT 435

Reducing the Costs of Divorce and Family Related Conflict for Parents and

Children

Problem-solving approaches to potential settlement are especially

appropriate in divorce and family disputes where economic, emotional, and

parental relationships often continue after the legal process ends. Dissolution

and reorganization of intimate relationships can generate intense anger, stress,

and anxiety, emotions which can be exacerbated by adversary litigation and

positional approaches to dispute resolution. The emotional and economic

futures of children and parents, who often have limited resources, are at stake in

family and divorce disputes. The needs of children are particularly implicated in

divorce cases, as children exposed to high levels of inter-parental conflict “are

at [a higher] risk for developing a range of emotional and behavioral problems,

both during childhood and later in life.” John H. Grych, Interparental Conflict

as a Risk Factor for Child Maladjustment: Implications for the Development of

Prevention Programs, 43 F

AM. CT. REV. 97, 97 (2005); see also

NTERPARENTAL CONFLICT AND CHILD DEVELOPMENT: THEORY, RESEARCH,

AND

APPLICATIONS 157 (John H. Grych & Frank D. Fincham eds., 2001); Joan

B. Kelly, Children’s Adjustment in Conflicted Marriage and Divorce: A Decade

Review of Research, 39 J.

AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 963,

963-65 (2000). When conflict levels are low between parents, a child is more

likely to have contact with both parents and the child support is more regularly

paid. See A

NDREW I. SCHEPARD, CHILDREN, COURTS, AND CUSTODY:

INTERDISCIPLINARY MODELS FOR DIVORCING FAMILIES 35 (2004) [hereinafter

SCHEPARD, CHILDREN, COURTS, AND CUSTODY].

Parents in divorce and family disputes have negative reactions to litigation

as a method of resolving family problems.

Id. at 42-44. Divorcing parents may

well thus rationally decide that their well-being and the well-being of their

children is better promoted by dispute resolution through collaborative law

rather than more traditional courtroom proceedings and adversarial oriented

positional negotiations. There are risks for parents who choose collaborative

law—especially of incurring the economic and emotional cost of employing a

new lawyer. But there are also benefits for them and their children.

[I]t would be a mistake to focus solely on the risks that [collaborative

law] poses for clients. Other things being equal, spouses who choose

court-based divorce presumably run the greater risk of harming

themselves and their children in bitter litigation or rancorous

negotiations. [Collaborative law] clients presumably bind themselves

by a mutual commitment to good faith negotiation in hopes of reducing

the risk that they will cause such harm, just as Ulysses had his crew tie

him to the mast so he would not succumb to the Sirens’ call and have

his ship founder.

Schneyer, supra, at 318 n.142; see also S

CHEPARD, CHILDREN, COURTS, AND

CUSTODY, supra, at 50-51 (emphasizing the alternate dispute resolution process

as the best choice for litigants who will maintain a relationship after resolution);

Robert E. Emery et al., Divorce Mediation: Research and Reflections, 43 F

AM.

436 HOFSTRA LAW REVIEW [Vol. 38:421

CT. REV. 22, 34 (2005) (stating parents’ need to avoid becoming adversaries in

divorce, especially where children are involved).

Less Costly, More Durable Settlements of Conflict

More generally, society benefits when parties in any kind of dispute have

more options for dispute resolution. The more dispute resolution options

available to parties, the greater the likelihood that they will choose a process

that will resolve their matters short of trial, earlier in their life cycle, at less

economic and emotional cost, and with greater long range satisfaction. See A

HOC PANEL ON DISPUTE RESOLUTION, NAT’L INST. FOR DISPUTE RESOLUTION,

PATHS TO JUSTICE: MAJOR PUBLIC POLICY ISSUES OF DISPUTE RESOLUTION,

reprinted in LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE

RESOLUTION AND LAWYERS 694, 695-96 (2d ed. 1997); Nancy H. Rogers &

Craig A. McEwen, Employing the Law to Increase the Use of Mediation and to

Encourage Direct and Early Negotiations, 13 O

HIO ST. J. ON DISP. RESOL. 831,

837-38 (1998).

Parties who participate in consensual dispute resolution processes like

collaborative law have a more positive view of the justice system. They

generally prefer consensual processes to resolution of disputes by court order,

even if they result in unfavorable outcomes. E.

ALLAN LIND & TOM R. TYLER,

THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 97 (1988). They see

consensual processes as subjectively fairer than adversarial dispute resolution.

Id. at 210. Consensual dispute also enhances the relationships underlying

conflict. Parties who participate in consensual dispute resolution feel a

commitment to the agreement they have come to and to the other party in the

conflict and are more likely to comply with that agreement as compared to one

imposed on them. See generally

TOM R. TYLER, WHY PEOPLE OBEY THE LAW

(1990).

Consensual dispute resolution gives parties the greatest opportunities for

participation in determining the outcome of the process, allows self-expression,

and encourages communication. Robert A. Baruch Bush, “What Do We Need a

Mediator for?”: Mediation’s “Value-Added” for Negotiators, 12 O

HIO ST. J. ON

DISP. RESOL. 1, 21 (1996). Parties value the self-determination inherent in

consensual dispute resolution, as they believe they know what is best for

themselves and want to be able to incorporate that understanding into the

settlement of their disputes. Robert A. Baruch Bush, Efficiency and Protection,

or Empowerment and Recognition?: The Mediator’s Role and Ethical

Standards in Mediation, 41 F

LA. L. REV. 253, 267-68 (1989).

Earlier settlements can reduce the disruption that a dispute can cause in the

lives of parties and others affected by the dispute and reduce private and public

resources spent on the resolution of disputes. See, e.g., J

EFFREY Z. RUBIN ET AL.,

SOCIAL CONFLICT: ESCALATION, STALEMATE, AND SETTLEMENT 71, 99 (2d ed.

1994) (discussing reasons for and consequences of conflict escalation). When

settlement is reached earlier, personal and societal resources dedicated to

resolving disputes can be invested in more productive ways. Earlier settlement

also diminishes the unnecessary expenditure of personal and institutional

resources for conflict resolution, and promotes a more civil society. T

EX. CIV.

2009] UNIFORM COLLABORATIVE LAW ACT 437

PRAC. & REM. CODE ANN. § 154.002 (Vernon 2005) (“It is the policy of this

state to encourage the peaceable resolution of disputes . . . . and the early

settlement of pending litigation through voluntary settlement procedures.”); see

also Wayne D. Brazil, Comparing Structures for the Delivery of ADR Services

by Courts: Critical Values and Concerns, 14 O

HIO ST. J. ON DISP. RESOL. 715,

725-26 (1999); Robert K. Wise, Mediation in Texas: Can the Judge Really

Make Me Do That?, 47 S.

TEX. L. REV. 849, 851-52 (2006). See generally

OBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF

AMERICAN COMMUNITY (2000) (discussing the causes for the decline of civic

engagement and ways of ameliorating the situation).

The Continued Role of Litigation in Dispute Resolution

Not all disputes can or should be resolved through negotiation and

compromise encouraged by collaborative law. Litigation and judicial

determinations serve vital social purposes. Courts articulate, apply, and expand

principals of law necessary to provide order to social and economic life.

Negotiations take place in the “shadow of the law” and precedents created by

litigation provide a framework to structure clients’ expectations of reasonable

results. Courts resolve factual conflicts through the time tested procedures of the

adversary system and required by due process of law. Courts can require

disclosure of information that one side wants to keep from the other. Courts can

issue orders backed by sanctions that protect the vulnerable and weak. These

benefits of the judicial process are generally not available when settlements

occur through private, confidential processes such as collaborative law. See

Owen M. Fiss, Against Settlement, 93 Y

ALE L.J. 1073, 1084-85 (1984).

The benefits of court-imposed resolution of disputes through litigation are

not, however, without costs. Parties can find litigation to be emotionally and

economically draining. Judge Learned Hand, in his customarily succinct style,

summarized the consequences of adversary litigation for many by stating that

“as a litigant I should dread a lawsuit beyond almost anything else short of

sickness and death.” Address of Learned Hand, in L

ECTURES ON LEGAL TOPICS,

1921-1922, 89, 105 (1926); see also Robert H. Heidt, When Plaintiffs Are

Premium Planners for Their Injuries: A Fresh Look at the Fireman’s Rule, 82

ND. L.J. 745, 769 (2007) (applauding the fireman’s rule for its curtailment of

“toxic and protracted” litigation and noting that “incessant wrangling . . . will

leave many professional rescuers and defendants dispirited” and may stretch on

for years, leaving the parties and witnesses bitter, stressed, and frustrated);

Jeffrey O’Connell & Andrew S. Boutros, Treating Medical Malpractice Claims

Under A Variant of the Business Judgment Rule, 77 N

OTRE DAME L. REV. 373,

420 (2002) (referring to Judge Learned Hand’s quote while discussing the

benefit of “prompt settlement of personal injury tort claims, including those

arising from medical malpractice”).

The overall goal for social policy is not to eliminate litigation. Rather, it is

to develop responsible alternatives to supplement litigation so that parties have

multiple options for dispute resolution. Parties can then decide for themselves if

the costs of litigation outweigh its benefits in their particular circumstances and

what alternative processes might best suit them. The greater the range of dispute

438 HOFSTRA LAW REVIEW [Vol. 38:421

resolution options that parties have for “‘fit[ting] the forum to the fuss,’” the

better. Lande & Herman, supra, at 284 (citation omitted).

Collaborative Law and the Legal Profession

In addition to its benefits for parties and the public, collaborative law also

has benefits for the legal profession. It merges the venerable tradition of lawyer

as counselor with the bar’s more recent successful experience with

representation of clients in ADR. Collaborative law provides professional

satisfaction for the lawyers who practice it. Collaborative law is especially well

suited to the emerging role of a lawyer as a problem solver for a party in a

divorce or family dispute. It is part of the trend towards unbundled or discrete

task legal representation. Bar Association ethics committees have concluded

that collaborative law is consistent with the rules of professional responsibility

governing lawyers, if entered into with informed client consent.

The Lawyer as Counselor

Lawyers have long and productively counseled clients to consider the

benefits of settlement and the costs of continued conflict. For example,

Abraham Lincoln in 1850 in his Notes for a Law Lecture advised young

lawyers:

Discourage litigation. Persuade your neighbors to compromise

whenever you can. Point out to them how the nominal winner is often a

real loser—in fees, expenses, and waste of time. As a peacemaker, the

lawyer has a superior opportunity of being a good man. There will still

be business enough.

BRAHAM LINCOLN, NOTES FOR A LAW LECTURE (1850[?]), in THE LIFE AND

WRITINGS OF ABRAHAM LINCOLN 327, 328 (Philip Van Doren Stern ed., 1940).

The Bar has long formally recognized the lawyer’s role as counselor articulated

by Lincoln in the Model Rules of Professional Conduct. Model Rule 2.1

provides that “[i]n rendering advice, a lawyer may refer not only to law but to

other considerations such as moral, economic, social and political factors, that

may be relevant to the client’s situation.” M

ODEL RULES OF PROF’L CONDUCT

R. 2.1 (2009). Comment 2 to Model Rule 2.1 amplifies the sentiment by stating

that

[a]dvice couched in narrow legal terms may be of little value to a

client, especially where practical considerations, such as cost or effects

on other people, are predominant. Purely technical legal advice,

therefore, can sometimes be inadequate. It is proper for a lawyer to

refer to relevant moral and ethical considerations in giving advice.

Although a lawyer is not a moral advisor as such, moral and ethical

considerations impinge upon most legal questions and may decisively

influence how the law will be applied.

ODEL RULES OF PROF’L CONDUCT R. 2.1 cmt. 2 (2009).

2009] UNIFORM COLLABORATIVE LAW ACT 439

The Special Role of the Family and Divorce Lawyer

The importance of the role of counselor and problem solver is especially

pronounced for lawyers who represent clients in divorce and family disputes

where collaborative law has had its greatest growth. Indeed, the divorce bar

recognizes that those disputes are particularly appropriate for the problem-

solving orientation to client representation that collaborative law encourages.

Bounds of Advocacy, a supplementary code of standards of professional

responsibility for divorce law specialists who are members of the American

Academy of Matrimonial Lawyers (AAML), states that: “[a]s a counselor, a

problem-solving lawyer encourages problem solving in the client. . . . The

client’s best interests include the well-being of children, family peace, and

economic stability.” AAML, Bounds of Advocacy: Preliminary Statement,

http://www.aaml.org/go/library/publications/bounds-of-advocacy/preliminary-

statement/ (last visited May 25, 2010). Bounds of Advocacy further states that

“the emphasis on zealous representation [used] in criminal cases and some civil

cases is not always appropriate in family law matters” and that “[p]ublic

opinion . . . increasingly support[s] other models of lawyering and goals of

conflict resolution in appropriate cases.” Id. Furthermore, Bounds of Advocacy

states that a divorce lawyer should “consider the welfare of, and seek to

minimize the adverse impact of the divorce on, the minor children.” AAML,

Bounds of Advocacy: Children, http://www.aaml.org/go/library/publications/

bounds-of-advocacy/6-children/ (last visited May 25, 2010).

Lawyers and Alternative Dispute Resolution

Collaborative law is also an outgrowth of the increasing number of lawyers

who had found clients benefit from the availability of and participation in ADR

processes such as mediation and arbitration. See M

ACFARLANE, NEW LAWYER,

supra, at 11.

The organized bar has generally encouraged the growth and development of

ADR processes and the involvement of lawyers in them. In 1976, 200 judges,

scholars, and leaders of the bar gathered at the Pound Conference convened by

the ABA to examine concerns about the efficiency and fairness of the court

systems and dissatisfaction with the administration of justice. Warren E. Burger,

Agenda for 2000 A.D.—A Need for Systematic Anticipation, 70 F.R.D. 83, 83

(1976). Then Chief Justice Warren Burger called for exploration of informal

dispute resolution processes. Id. at 93. The Pound Conference emphasized ADR

processes—particularly mediation—as better for litigants who had continuing

relationships after the trial was over because it emphasized their common

interests rather than those that divided them. See Frank E. A. Sander, Varieties

of Dispute Processing, 70 F.R.D. 111, 121, 127 (1976). Professor Frank Sander,

Reporter for the Pound Conference’s follow-up task force, projected a powerful

vision of the court as not simply “a court house but a Dispute Resolution Center,

where the grievant would first be channeled through a screening clerk who

would then direct him to the process (or sequence of processes) most

appropriate to his type of case.” Id. at 131.

Today, approximately forty years after the Pound Conference, ADR has

been fully integrated into the dispute resolution systems of most jurisdictions.

440 HOFSTRA LAW REVIEW [Vol. 38:421

See LexisNexis 50 State Comparative Legislation/Regulations: Alternative

Dispute Resolution (2008) (unpublished fifty-state survey) (on file with

Reporter). All fifty states have adopted ADR statutes or regulations, id.,

including: A

RIZ. REV. STAT. ANN. § 10-1806 (2004) (settling disputes by

arbitration for close corporations); C

AL. BUS. & PROF. CODE § 465 (West 2007)

(establishing community dispute resolution programs); COLO. REV. STAT. ANN.

§ 13-22-201 (West Supp. 2009) (court procedures for arbitration); FLA. STAT.

ANN. § 455.2235 (West 2007) (mediation provisions for businesses and

professions); WASH. REV. CODE. ANN. § 7.06.010 (West 2007) (mandatory

arbitration of civil actions).

In many states lawyers are required to present clients with ADR options—

mediation, expert evaluation, arbitration—in addition to litigation.

Professionalism creeds in Texas and Ohio, for example, require such discussion

between lawyers and clients. See S

UPREME COURT OF OHIO, PROFESSIONAL

IDEALS FOR OHIO LAWYERS AND JUDGES 5 (2007) (highlighting the Lawyer’s

Creed, which provides in part that a lawyer shall counsel his client “with respect

to alternative methods to resolve disputes.”); S

UPREME COURT OF TEX. COURT

CRIMINAL APPEALS, THE TEXAS LAWYER’S CREED: A MANDATE FOR

PROFESSIONALISM § II(11) (1989), available at http://www.texasbar.com/

Template.cfm?Section=pamphlets&CONTENTID=7227&TEMPLATE=/Conte

ntManagement/ContentDisplay.cfm (“I will advise my client regarding the

availability of mediation, arbitration, and other alternative methods of resolving

and settling disputes.”). In other states, similar obligations are imposed on

lawyers by statute or court rule. See, e.g., A

RK. CODE. ANN. § 16-7-204 (1999)

(“All attorneys . . . are encouraged to advise their clients about the dispute

resolution process options available to them and to assist them in the selection

of the technique or procedure. . . .”); N.J.

CT. R. 1:40-1 (giving attorneys the

responsibility to discuss alternative resolution procedures with their clients); see

also Marshall J. Breger, Should an Attorney Be Required to Advise a Client of

ADR Options?, 13 G

EO. J. LEGAL ETHICS 427, apps. I & II (2000) (providing a

comprehensive list of court rules, state statutes, and ethics provisions). See

generally Bobbi McAdoo, A Report to the Minnesota Supreme Court: The

Impact of Rule 114 on Civil Litigation Practice in Minnesota, 25 H

AMLINE L.

REV. 401 (2002) (discussing the Minnesota rule requiring ADR to be considered

in civil cases); Bobbi McAdoo & Art Hinshaw, The Challenge of

Institutionalizing Alternative Dispute Resolution: Attorney Perspectives on the

Effect of Rule 17 on Civil Litigation in Missouri, 67 M

O. L. REV. 473 (2002)

(empirical studies analyzing the impact of rules requiring lawyers to discuss

ADR with clients).

Collaborative Law and “Unbundled” Legal Representation

Collaborative law is also part of the movement towards delivery of

“unbundled” or “discreet task” legal representation, as it separates by agreement

representation in settlement-oriented processes from representation in pretrial

litigation and the courtroom. By increasing the range of options for services that

lawyers can provide to clients, unbundled legal services reduces costs and

increases client satisfaction with the services provided. F

ORREST S. MOSTEN,

2009] UNIFORM COLLABORATIVE LAW ACT 441

UNBUNDLING LEGAL SERVICES: A GUIDE TO DELIVERING LEGAL SERVICES A LA

CARTE 8-10 (2000) [hereinafter MOSTEN, UNBUNDLING LEGAL SERVICES];

Franklin R. Garfield, Unbundling Legal Services in Mediation: Reflections of a

Family Lawyer, 40 F

AM. CT. REV. 76, 85 (2002). The organized bar has

recognized unbundled services like collaborative law as a useful part of the

lawyer’s representational options. See Forrest S. Mosten, Guest Editorial Notes,

40 F

AM. CT. REV. 10, 10 (2002); see also MOSTEN, UNBUNDLING LEGAL

SERVICES, supra, at 1-12 (explaining unbundled legal representation, and

demonstrating ABA approval in this work). See generally Symposium, The

Changing Face of Legal Practice: Twenty-Six Recommendations from the

Baltimore Conference—A National Conference on ‘Unbundled’ Legal Services

October 2000, 40 F

AM. CT. REV. 26 (2002) (summarizing the recommendations

of the conference on how to fit unbundled legal representation within the legal-

services delivery system, the courts, the organized private bar, and the state

legislatures).

Collaborative Law and Ethics Opinions of Bar Associations

The trends in the legal profession described above—the importance of the

role of the lawyer as counselor, the importance of settlement and stability to

parents and children, the growth of representation of clients in ADR and in

unbundled legal representation—are reflected in the organized bar’s positive

response to collaborative law. Numerous bar association ethics committees have

concluded collaborative law is generally consistent with the Model Rules of

Professional Conduct and the obligations of lawyers to clients. See Ky. Bar

Ass’n, Ethics Op. E-425, 8-9 (2005), available at http://www.kybar.org/

documents/ethics_opinions/kba_e-425.pdf; Advisory Comm. of the Supreme

Court of Mo., Formal Op. 124 (2008), available at www.mobar.org/

data/esq08/aug22/formal-opinion.htm; N.J. Advisory Comm. on Prof’l Ethics,

Op. 699 (2005), available at http://lawlibrary.rutgers.edu/ethicsdecisions/

acpe/acp699_1.html; N.C. State Bar Ass’n, Formal Ethics Op. 1 (2002),

available at http://www.ncbar.com/ethics/printopinion.asp?id+641; Pa. Bar

Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Informal Op. 2004-24,

at 3-5 (2004), available at http://www.collaborativelaw.us/articles/Ethics_

Opinion_Penn_CL_2004.pdf. As one commentator has noted, “the mainstream

response [of the organized bar] has for the most part accepted [collaborative

law], at least as a worthwhile experiment.” Schneyer, supra, at 292.

Only one state bar ethics opinion concluded to the contrary, arguing that

when collaborative lawyers sign a collaborative law participation agreement

with parties, they assume contractual duties to other parties besides their client,

creating an intolerable conflict of interest. Ethics Comm. of the Colo. Bar

Ass’n, Ethics Op. 115 (2007), available at http://www.cobar.org/index.cfm/ID/

386/subID/10159/CETH/Ethics-Opinion-115:-Ethical-Considerations-in-the-

Collaborative-and-Cooperative-Law-Contexts,-02/24//. Even that opinion,

however, recognized that collaborative law was permissible if an agreement is

between clients only, without the agreement of the lawyers. Id. Furthermore,

Colorado’s unique view has been specifically rejected by the ABA. ABA

Comm. on Ethics and Prof’l Responsibility, Formal Op. 07-447, at 3 (2007).

442 HOFSTRA LAW REVIEW [Vol. 38:421

The ABA opinion concluded that collaborative law is a “permissible limited

scope representation,” the disqualification provision is “not an agreement that

impairs [the lawyer’s] ability to represent the client, but rather is consistent with

the client’s limited goals for the representation,” and “[i]f the client has given

his or her informed consent, the lawyer may represent the client in the

collaborative law process.” Id. at 1, 3-4.

The Satisfactions of Service for Collaborative Lawyers

Some are more suited to the courtroom while others are more suited to the

conference room. As a result, not all lawyers will practice collaborative law.

The growth of collaborative law has an intangible benefit, however, for the

lawyers who practice it—greater satisfaction in the profession they have chosen.

Susan Daicoff, Lawyer, Be Thyself: An Empirical Investigation of the

Relationship Between the Ethic of Care, the Feeling Decisionmaking

Preference, and Lawyer Wellbeing, 16 V

A. J. SOC. POL’Y & L. 87, 133 (2008).

Collaborative lawyers generally feel that the collaborative law process enables

them to work productively with other professions in service to parties. See Janet

Weinstein, Coming of Age: Recognizing the Importance of Interdisciplinary

Education in Law Practice, 74 W

ASH. L. REV. 319, 337-38 (1999). Instead of

using these professionals in an adversarial framework as expert witnesses or

consultants to further their “case,” collaborative lawyers draw on their expertise

to help shape creative negotiations and settlements. Elizabeth Tobin Tyler,

Allies Not Adversaries: Teaching Collaboration to the Next Generation of

Doctors and Lawyers to Address Social Inequality, 11 J.

HEALTH CARE L. &

POL’Y 249, 271-72 (2008).

More globally, collaborative lawyers feel they help their clients resolve

their disputes productively, thus fulfilling Lincoln’s inspirational vision of the

lawyer “[a]s a peacemaker” with the “superior opportunity of being a good man

[or woman]” for whom “[t]here will still be business enough.” L

INCOLN, supra,

at 328. The professional satisfaction of the collaborative lawyer’s role may have

best been summed up nearly one hundred years after Lincoln wrote by another

great figure who was also a practicing lawyer, Mohandas Gandhi. Gandhi

served as a lawyer for the South African Indian community before he returned

to India to lead its fight for independence. Reflecting on his experience

encouraging a settlement by a client of a commercial dispute, Gandhi wrote:

My joy was boundless. I had learnt the true practice of law. I had learnt

to find out the better side of human nature and to enter men’s hearts. I

realized that the true function of a lawyer was to unite parties riven

asunder. The lesson was so indelibly burnt into me that a large part of

my time during the twenty years of my practice as a lawyer was

occupied in bringing about private compromises of hundreds of cases. I

lost nothing thereby—not even money, certainly not my soul.

M.K.

GANDHI, GANDHI’S AUTOBIOGRAPHY: THE STORY OF MY EXPERIMENTS

WITH

TRUTH 168 (Mahadev Desai trans., 1960).

2009] UNIFORM COLLABORATIVE LAW ACT 443

The Uniform Collaborative Law Act—An Overview

The overall goal of the Uniform Collaborative Law Act is to encourage the

continued development and growth of collaborative law as a voluntary dispute

resolution option. Collaborative law has thus far largely been practiced under

the auspices of private collaborative law participation agreements developed by

private practice groups. These agreements vary substantially in depth and detail,

and their enforcement must be accomplished by actions for breach of contract.

The Uniform Collaborative Law Act aims to standardize the most important

features of collaborative law participation agreements, both to protect

consumers and to facilitate party entry into a collaborative law process. It

mandates essential elements of a process of disclosure and discussion between

prospective collaborative lawyers and prospective parties to better insure that

parties who sign participation agreements do so with informed consent. It

requires collaborative lawyers to make reasonable inquiries and take steps to

protect parties against the trauma of domestic violence. The act also makes

collaborative law’s key features—especially the disqualification provision and

voluntary disclosure of information provision—mandated provisions of

participation agreements that seek the benefits of the rights and obligations of

the act. Finally, the act creates an evidentiary privilege for collaborative law

communications to facilitate candid discussions during the collaborative law

process.

Specifically, the Uniform Collaborative Law Act:

• applies only to collaborative law participation agreements that meet the

requirements of the act, thus seeking to insure that parties do not

inadvertently enter into a collaborative law process (section 3);

• establishes minimum requirements for collaborative law participation

agreements, including written agreements that state the parties’

intention to resolve their matter (collaborative matter) through a

collaborative law process under the act, include a description of the

matter submitted to a collaborative law process, and designation of

collaborative lawyers (section 4);

• emphasizes that party participation in collaborative law is voluntary by

prohibiting tribunals from ordering a party into a collaborative law

process over that party’s objection (section 5 (b));

• specifies when and how a collaborative law process begins and is

concluded (section 5);

• creates a stay of proceedings when parties sign a participation

agreement to attempt to resolve a matter related to a proceeding

pending before a tribunal while allowing the tribunal to ask for

periodic status reports (section 6);

• makes an exception to the stay of proceedings for emergency orders to

protect health, safety, welfare or interests of a party, a family member

or a dependent (section 7);

• authorizes tribunals to approve settlements arising out of a

collaborative law process (section 8);

• codifies the disqualification requirement for collaborative lawyers

when a collaborative law process concludes (section 9);

444 HOFSTRA LAW REVIEW [Vol. 38:421

• defines the scope of the disqualification requirement to include both

the collaborative matter and a matter “related to the collaborative

matter” (section 9)—those involving the “same parties, transaction or

occurrence, nucleus of operative fact, dispute, claim, or issue as the

collaborative matter” (section 2(13));

• extends the disqualification requirement beyond the individual

collaborative lawyer to lawyers in a law firm with which the

collaborative lawyer is associated (imputed disqualification) (section

9(b));

• relaxes imputed disqualification if the firm represents low-income

parties for no fee, the parties agree to the exception in advance in their

collaborative law participation agreement, and the original

collaborative lawyer is screened from further participation in the matter

or related matters (section 10(b));

• creates a similar exception for collaborative lawyers for government

agencies (section 11(b));

• requires parties to voluntarily disclose relevant information during the

collaborative law process without formal discovery requests and update

information previously disclosed that has materially changed; the

parties may also agree on the scope of disclosure required during a

collaborative law process if that scope is not inconsistent with other

law (section 12);

• acknowledges that standards of professional responsibility and child

abuse reporting for lawyers and other professionals are not changed by

their participation in a collaborative law process (section 13);

• requires that lawyers disclose and discuss the material risks and

benefits of a collaborative law process as compared to other dispute

resolution processes such as litigation, mediation, and arbitration to

help insure parties enter into collaborative law participation agreements

with informed consent (section 14(2));

• creates an obligation on collaborative lawyers to screen clients for

domestic violence (defined as a “coercive or violent relationship”) and,

if present, to participate in a collaborative law process only if the

victim consents and the lawyer reasonably believes that the victim will

be safe (section 15);

• authorizes parties to reach an agreement on the scope of confidentiality

of their collaborative law communications (section 16);

• creates an evidentiary privilege for collaborative law communications

which are sought to be introduced into evidence before a tribunal

(section 17);

• provides for possibility of waiver of and limited exceptions to the

evidentiary privilege based on important countervailing public policies

(such as the protection of bodily integrity and crime prevention) similar

2009] UNIFORM COLLABORATIVE LAW ACT 445

to those recognized for mediation communications in the Uniform

Mediation Act (sections 18-19)*;

• authorizes tribunal discretion to enforce agreements that result from a

collaborative law process, the disqualification requirement and the

evidentiary privilege provisions of the act, despite the lawyers’

mistakes in required disclosures before collaborative law participation

agreements are executed and in the written participation agreements

themselves (section 20).

Key Policy Issues Addressed in the Drafting of the Uniform Collaborative

Law Act

The Balance Between Regulation and Party Autonomy

The Uniform Collaborative Law Act supports a trend that emphasizes client

autonomy and “greater reliance on governance of lawyer-client relationship by

contract.” Schneyer, supra, at 318. The act’s philosophy is to set a standard

minimum floor for collaborative law participation agreements to inform and

protect prospective parties and make a collaborative law process easier to

administer. Beyond minimum requirements, however, the act leaves the

collaborative law process to agreement between parties and collaborative

lawyers.

The act’s regulatory philosophy encourages parties and their collaborative

lawyers to design a collaborative law process through contract that best satisfies

their needs and economic circumstances. Parties can add additional provisions

to their agreements which are not inconsistent with the core features of

collaborative law (section 4(b)): the disqualification requirement (sections 9-

11); voluntary disclosure of information (section 12); informed consent (section

14); protection of safety from domestic violence (section 15); and a party’s right

to terminate a collaborative law process without cause (section 5(f)). The act’s

regulatory philosophy is similar to the regulatory philosophy that animates the

Uniform Arbitration Act:

Arbitration is a consensual process in which autonomy of the parties

who enter into arbitration agreements should be given primary

consideration, so long as their agreements conform to notions of

fundamental fairness. This approach provides parties with the

* The Drafting Committee for the Uniform Collaborative Law Act gratefully acknowledges

a major debt to the drafters of the Uniform Mediation Act. The drafting of the Uniform Mediation

Act required the National Conference of Commissioners on Uniform State Laws (now the Uniform

Law Commission) to comprehensively examine a dispute resolution process serving many of the

same goals as collaborative law, and ask what a statute could do to facilitate the growth and

development of that process. Many of the issues involved in the drafting of the Uniform

Collaborative Law Act, particularly those involving the scope of evidentiary privilege, are virtually

identical to those that had to be resolved in the drafting of the Uniform Mediation Act. As a result,

some of the provisions, the commentary and citations in this act are taken verbatim or with slight

adaptation from the Uniform Mediation Act. To reduce confusion, those provisions are presented

here without quotation marks or citations, and edited for brevity and with insertions to make them

applicable to collaborative law.

446 HOFSTRA LAW REVIEW [Vol. 38:421

opportunity in most instances to shape the arbitration process to their

own particular needs.

NIF. ARBITRATION ACT Prefatory Note (2000).

As previously described, collaborative law can be practiced following many

different models. There are many varieties of participation agreements—some

short, some long, some in legalese, and some in plain language. Some models of

collaborative law do not require the parties to hire any additional experts to play

any role. In other models, collaborative law involves many professionals (e.g.,

mental health and financial planners) from other disciplines, see L

A. DIST. CT.

R. tit. IV, ch. 39, R. 39.0; in others, it does not. See CONTRA COSTA, CAL.,

LOCAL CT. R. 12.5. In some models of collaborative law, mental health

professionals play roles such as “divorce coach” and “child specialist.” Pauline

H. Tesler, Collaborative Family Law, the New Lawyer, and Deep Resolution of

Divorce-Related Conflicts, 2008 J.

DISP. RESOL. 83, 92 n.23, 93 n.24. Neutral

experts can be engaged by the parties to do a specific task such as an appraisal

or valuation or evaluation of parenting issues. Id. at 93 n.25. Some models of

collaborative law encourage parties and collaborative lawyers to mediate

disputes and call in a third party neutral for that purpose. Id. at 92.

In the interests of stimulating diversity and continuing experimentation in

collaborative law, the act does not regulate in detail how collaborative law

should be practiced. Each model of collaborative law has different benefits and

costs, as do different models of mediation or arbitration. See Roger S. Haydock

& Jennifer D. Henderson, Arbitration and Judicial Civil Justice: An American

Historical Review and a Proposal for a Private/Arbitral and Public/Judicial

Partnership, 2 P

EPP. DISP. RESOL. L.J. 141, 189-91 (2002). See generally

Edward Brunet, Replacing Folklore Arbitration with a Contract Model of

Arbitration, 74 T

UL. L. REV. 39 (2000) (discussing the evolution from the

“folklore arbitration model” to the “contract model” of arbitration); Leonard L.

Riskin, Decisionmaking in Mediation: The New Old Grid and the New New

Grid System, 79 N

OTRE DAME L. REV. 1 (2003) (discussing the uses and

problems of the “old grid” system of mediation and the “new grid” system of

mediation). A dispute resolution process which involves more professionals

will, for example, cost parties more than one which does not. It will also give

parties the benefit of access to the expertise of mental health professionals and

financial planners. There is no particular public policy reason a statute should

prefer one model of collaborative practice over another, as opposed to

promoting the development of collaborative law generally as a dispute

resolution option. It will be up to parties, collaborative lawyers, and the

marketplace to determine what model of practice best meets party needs.

Legislation and Professional Responsibility Obligations of Lawyers

As previously discussed, bar association ethics opinions—including one

from the ABA—have concluded that collaborative lawyers are bound by the

same rules of ethics as other lawyers and that the practice of collaborative law is

consistent with those rules. See supra pp. 441-42. To avoid any possible

confusion, section 13 of the Uniform Collaborative Law Act explicitly states the

2009] UNIFORM COLLABORATIVE LAW ACT 447

act does not change the professional responsibility obligations of collaborative

lawyers.

Indeed, any attempt to change the professional responsibility obligations of

lawyers by legislation would raise separation of powers concerns, as that power

is in some states reserved to the judiciary. Attorney Gen. v. Waldron, 426 A.2d

929, 932 (Md. 1981) (striking down as unconstitutional a statute that in the

court’s view was designed to “prescrib[e] for certain otherwise qualified

practitioners additional prerequisites to the continued pursuit of their chosen

vocation”); Wisconsin ex rel. Fiedler v. Wis. Senate, 454 N.W.2d 770, 772

(Wis. 1990) (concluding that the state legislature may share authority with the

judiciary to set forth minimum requirements regarding persons’ eligibility to

enter the bar, but the judiciary ultimately has the authority to regulate training

requirements for those admitted to practice). See also R

ESTATEMENT (THIRD) OF

THE

LAW GOVERNING LAWYERS § 1 cmt. c (2000).

It is also important to note that the favorable bar association opinions and

the act do not validate every form of collaborative law agreement or

collaborative law practice. This still leaves collaborative lawyers and

collaborative law participation agreements subject to regulation by bar ethics

committees and other agencies charged with regulating lawyers and to

malpractice claims by clients. Particular collaborative law participation

agreements, for example, may have provisions which raise professional

responsibility concerns. The act does not require that lawyers sign the

collaborative law participation agreement as parties, a practice common in the

collaborative law community; rather, it requires only that parties identify their

collaborative lawyers in participation agreements and that the lawyer sign a

statement confirming the lawyer’s representation of a client in collaborative

law. See infra § 4(a)(6). Depending on the language and structure of a

participation agreement, a lawyer who signs it may assume duties to another

party to the agreement—a person with conflicting interests other than his or her

client—a result that could raise ethics concerns. Scott R. Peppet, The (New)

Ethics of Collaborative Law, 14 D

ISP. RESOL. MAG. 23, 24-26 (2008). The act

leaves questions raised by particular language and form in collaborative law

participation agreements to regulation by the same sources of authority that

regulate all lawyer conduct such as ethics committees. Furthermore, to the

extent that a collaborative law participation agreement is also a lawyer-client

limited retainer agreement, it must meet whatever requirements are set by state

law for lawyer-client retainer agreements. See, e.g., N.Y.

COMP. CODES R. &

REGS. tit. 22, § 202.16(c) (1986) (governing the lawyer-client relationship in

matrimonial matters, including requirement of written retainer agreement).

The Need for Legal Representation in Collaborative Law

Under the act, parties can sign a collaborative law participation agreement

only if they engage a collaborative lawyer. Collaborative law is not an option

for the self-represented.

The requirement that parties be represented differentiates collaborative law

from other ADR processes. Generally, self-represented litigants are allowed to

participate in arbitration. See U

NIF. ARBITRATION ACT § 16 (2000) (“A party to

448 HOFSTRA LAW REVIEW [Vol. 38:421

an arbitration proceeding may be represented by a lawyer.” (emphasis added)).

Several federal and state courts allow self-represented litigants in arbitration.

See, e.g., U.S.

DIST. COURT FOR THE DIST. OF IDAHO, PRO SE HANDBOOK: THE

MANUAL FOR THE LITIGANT FILING WITHOUT COUNSEL 4, 11 (1995), available

at http://www.id.uscourts.gov/docs/pro-se.pdf; U.S.

DIST. COURT FOR THE E.

DIST. OF TENN., VOLUNTARY ARBITRATION 5 (2000), available at

http://www.tned.uscourts.gov/docs/med_arb/arbhbook.pdf; Alternative Dispute

Resolution, Arbitrator’s Handbook to Compulsory Arbitration in the Delaware

Superior Court, http://courts.state.de.us/Courts/Superior%20Court/ADR/ADR/

adr_compulsory_arbitration.htm#b2 (last visited May 25, 2010). However,

some states and arbitration programs have taken the opposite view. See, e.g.,

U.S. Dist. Ct. for the E. Dist. of N.Y., Arbitration FAQ, http://www.nyed.

uscourts.gov/adr/Arbitration/Arbitration_FAQ/arbitration_faq.html (last visited

May 25, 2010). Similarly, self-represented litigants are generally allowed to

participate in mediation. The drafting committee of the Uniform Mediation Act

elected to let the parties decide whether to bring counsel into mediation. U

NIF.

MEDIATION ACT § 10 cmt., 7A U.L.A. 146 (2006). State statutes differ on

whether a mediator is empowered to exclude lawyers from mediation. See, e.g.,

AL. FAM. CODE § 3182 (West 2004) (mediator has authority to exclude

counsel); N.D. CENT. CODE § 14-09.1-05 (2004) (mediator may not exclude

counsel); S.D. CODIFIED LAWS § 25-4-59 (2004) (mediator may exclude

counsel).

An individual’s statutory right to self-representation in court was initially

recognized by the Judiciary Act of 1789. T

ASK FORCE ON PRO SE LITIGATION,

GUIDELINES FOR BEST PRACTICES IN PRO SE ASSISTANCE 9 (2004), available at

http://www.lasc.org/la_judicial_entities/Judicial_Council/Pro_Se_Guidelines.pdf

(setting forth the best national and local practices that may be used by district

court judges to provide assistance to pro se litigants). It was later codified in 28

U.S.C. § 1654 (2006) (“In all courts of the United States the parties may plead

and conduct their own cases personally . . . .”). Additionally, the constitution or

statutes of many states either expressly or by interpretation provide for the right

to self-representation in court. See J

ONA GOLDSCHMIDT ET AL., MEETING THE

CHALLENGE OF PRO SE LITIGATION: A REPORT AND GUIDEBOOK FOR JUDGES

AND

COURT MANAGERS app. III at 130-34 (1998), available at

http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/accessfair&

CISOPTR=106.

Collaborative law is, however, a private, contractual agreement between

parties to attempt to resolve disputes out of court. Parties may be required to

agree to waive their right to self representation as a condition for participating in

collaborative law and getting its benefits, but they must do so with informed

consent and be aware of the risks and benefits of their decision. See Richard C.

Reuben, Constitutional Gravity: A Unitary Theory of Alternative Dispute

Resolution and Public Civil Justice, 47 UCLA

L. REV. 949, 1081-82 (2000).

Practical considerations also require limiting collaborative law to parties

who are represented by counsel. If self-represented parties participated in

collaborative law, especially if only one side were in this category, there would

be a high potential for role confusion. Both parties might look to the single

2009] UNIFORM COLLABORATIVE LAW ACT 449

lawyer for an assessment of their rights or relative weakness or strength of their

case without the protection of advice from their own counsel. The individual

collaborative lawyer would be placed in a difficult situation and would have to

structure what he or she says to the unrepresented party carefully. See Ass’n of

the Bar of the City of N.Y. Comm. on Prof’l and Judicial Ethics, Formal Op.

2009-2 (2009), available at http://www.abcny.org/Ethics/eth2009-2.htm

(describing standards for what a lawyer can and cannot say to an unrepresented

party, and imposing a duty to explain rules to an unrepresented party). A self-

represented party in collaborative law would have neither a neutral nor an

advocate to help balance what might be a great difference in knowledge, power,

or resources between the parties. Thus, a self-represented party runs a great risk

of impairing his or her case and being manipulated in collaborative law

negotiations. Additionally, agreements to participate in a collaborative law

process and consent to agreements that result from the process may not be truly

informed without counsel.

Education and Training Requirements for Collaborative Lawyers

At present, each collaborative law practice group sets its own qualifications

and training standards for membership, which can be quite extensive. See, e.g.,

Collaborative Family Law Group of San Diego, Training for Collaborative

Divorce Professionals, Bylaws § 2.02, http://www.collaborativefamilylaw

sandiego.com/training.htm (last visited May 25, 2010) (requiring attorneys to be

licensed in California and have at least five years experience in the field of

family law, in addition to the other requirements of the association, including

completing a two-day training program, attending at least half of the CLE

programs offered by the association every year as well as the association’s

general meetings, and maintaining membership in the IACP); Massachusetts

Collaborative Law Council, Membership Standards for Collaborative

Practitioners 1 (2006),

http://www.massclc.org/pdf/2006STANDARDSFOR

PROFESSIONALS.pdf (last visited May 25, 2010) (requiring attorneys be

licensed and in good standing, have professional liability insurance, be current

in payment of council membership dues, and have twelve hours of basic

collaborative law training that meets IACP minimum standards); N.Y. Ass’n of

Collaborative Prof’ls, Joining the New York Association of Collaborative

Professionals, http://www.collaborativelawny.com/join.php#Lawyer (last

visited May 25, 2010) (requiring that attorneys be a member in good standing of

the New York State Bar with professional liability insurance, have five years of

matrimonial experience, and participate in two-day collaborative law training,

thirty-six to forty hours of mediation training, and attend seven meetings during

the year; the association also requires continuing training after the first year of

membership, ranging between eight to twelve hours).

For fear of raising separation of powers concerns previously discussed,

however, the act does not prescribe special qualifications and training for

collaborative lawyers or other professionals who participate in the collaborative

law process. The act’s decision against prescribing qualifications and training

for collaborative law practitioners should not be interpreted as a disregard for

their importance. The act anticipates that collaborative lawyers and affiliated

450 HOFSTRA LAW REVIEW [Vol. 38:421

professionals will continue to form and participate in voluntary associations of

collaborative professionals who can prescribe standards of practice and training

for their members. Many such private associations already exist and their future

growth and development after passage of the act is foreseeable and encouraged.

Subject Matter Limitations and Divorce and Family Disputes

While collaborative law has, thus far, found its greatest acceptance in

divorce and family disputes, the act does not restrict the availability of

collaborative law to those subjects. Under it, collaborative law participation

agreements can be entered into to attempt to resolve everything from contractor-

subcontractor disagreements, estate disputes, employer-employee rights,

statutory based claims, customer-vendor disagreements, or any other matter.

The act leaves the decision whether to use collaborative law to resolve any

matter to the parties with the advice of lawyers, not to a statutory subject matter

restriction which will be difficult to enforce and controversial to draft.

One reason not to limit collaborative law to “divorce and family disputes or

matters” is that the act would have to define those terms, a daunting task in light

of rapid changes in the field. Should the act, for example, allow or not allow a

collaborative law process in disputes arising from civil unions? Domestic

partnerships? Adoptions? Premarital agreements? Assisted reproductive

technologies? International child custody matters? Unmarried but romantically

linked business partners? Inheritances? Family trusts and businesses? Child

abuse and neglect? Foster care review? Elder abuse? Family related issues cut

across many old and emerging categories of fields of law and disputes difficult

to define in a statute.

More generally, there is no particular policy reason to restrict party

autonomy to choose collaborative law to a particular class of dispute, as parties

with a matter in any field could potentially find collaborative law a useful

option. Hopefully, over time, as collaborative law becomes more established

and visible, more parties with matters in areas other than family and divorce

disputes will come to understand its benefits and invoke the benefits and

protections of the act.

Collaborative law is a voluntary dispute resolution option for parties

represented by lawyers. The act requires that a lawyer help insure informed

consent of the benefits and burdens of a collaborative law process before a party

signs a participation agreement. A party’s representation by a lawyer is a check

against an improvident agreement. No one is or can be compelled to enter into a

collaborative law process or agree to anything during it. A party can terminate

collaborative law at any time and for any reason.

Collaborative Law in Pending Cases

The purpose of the act is to provide parties an additional option to consider

for resolving a matter without judicial intervention. That purpose is furthered

even if parties choose collaborative law after a case is commenced in court.

Every pending case that is settled without a trial conserves party and public

resources for other matters. Section 6(a) thus authorizes parties to a proceeding

2009] UNIFORM COLLABORATIVE LAW ACT 451

before a tribunal—usually an action in court—to sign a collaborative law

participation agreement.

Notice to the tribunal that a collaborative law participation agreement has

been signed stays further proceedings, except for status reports. See infra § 6(a),

(c). The stay is lifted when the collaborative law process concludes. See infra

§ 6(b). Section 7 also explicitly creates an exception to the stay of proceedings

for “emergency orders to protect the health, safety, welfare, or interest of a

party” or family or household member. In addition, Section 8 authorizes

tribunals to approve settlements entered into as a result of a collaborative law

process. These provisions are based on court rules and statutes recognizing

collaborative law in a number of jurisdictions. See C

AL. FAM. CODE § 2013

(West Supp. 2009); N.C. GEN. STAT. §§ 50-71,-73 to -75 (2007); TEX. FAM.

CODE § 6.603 (Vernon 2008); TEX. FAM. CODE § 153.0072 (Vernon 2006);

CAL. CONTRA COSTA LOCAL CT. R. 12.5; CAL. L.A. COUNTY LOCAL CT. R.

14.26; C

AL. S.F. COUNTY LOCAL CT. R. 11.17; CAL. SONOMA COUNTY LOCAL

CT. R. 9.26; LA. DIST. CT. R. R. 39.0; MINN. GEN. R. PRAC. 111.05 (2008);

MINN. GEN. R. PRAC. 304.05 (2008); UTAH R. JUD. ADMIN. 4-510(1)(D) (2009);

In re Domestic Relations—Collaborative Conflict Resolution in Dissolution of

Marriage Cases, Fla. Admin. Order No. 07-20-B (June 25, 2007).

The Scope of the Disqualification Requirement

“The disqualification requirement for collaborative lawyers after

collaborative law concludes is a fundamental defining characteristic of

collaborative law.” See infra § 9 cmt. The economic incentives that the

disqualification requirement creates for settlement will be defeated if the

disqualification requirement is easily circumvented by collaborative lawyers or

by referrals to other lawyers from which the collaborative lawyer profits. Thus,

section 9 extends the requirement to not only the collaborative matter but also to

matters “related to a collaborative matter.” In addition, the act prohibits lawyers

affiliated with a collaborative lawyer from continuing representation of a party

(imputed disqualification), thus reducing further the chances of circumventing

the disqualification requirement.

Matters “Related to” a Collaborative Matter

Section 9 extends the disqualification requirement beyond the matter

described in the participation agreement to matters that are “related” to the

“collaborative matter.” “Related to [the] collaborative matter,” in turn, is

defined in section 2(13) as “involving the same parties, transaction or

occurrence, nucleus of operative fact, dispute, claim, or issue as the

collaborative matter.” The policy behind these definitions is to prevent the

collaborative lawyer from representing a party in court, for example, in an

enforcement action resulting from a divorce judgment if the divorce itself was

the subject of a completed collaborative law process between the same parties.

The definition of “related to” draws upon the elements of a compulsory

counterclaim as defined in Federal Rule of Civil Procedure 13(a)(1) and the

definition of supplemental jurisdiction for the federal courts found in 28 U.S.C.

§ 1367(a) (2006). The act thus adopts a broad approach to what is “related to a

452 HOFSTRA LAW REVIEW [Vol. 38:421

collaborative matter” intended to emphasize that in cases of doubt the

disqualification provision should be applied more broadly than narrowly. See,

e.g., Abraham Natural Foods Corp. v. Mount Vernon Fire Ins. Co., 576 F. Supp.

2d 421, 424 (E.D.N.Y. 2008).

Application of “related to a collaborative matter” will ultimately turn on a

case-by-case analysis of the purportedly related matter and its relationship to the

collaborative matter. Key issues that will be useful in making the decision will

include: whether the related matter involves the same or related or different

parties; the time elapsed between the matters; whether the matters involve the

same or related issues; whether the claims arise from the same transaction or

occurrence or series of transactions or occurrences; and whether the wrongs

complained of and redress sought, theory of recovery, evidence, and material

facts alleged are the same in both matters.

Imputed Disqualification of Associated Lawyers

Section 9(b) adapts the rule of “imputed disqualification” by extending the

disqualification requirement to lawyers in a law firm with which the

collaborative lawyer is associated in addition to the lawyer him or herself. The

policy behind the imputed disqualification requirement is to prevent the

collaborative lawyer from indirectly profiting from the continued representation

by an affiliated lawyer when the original collaborative lawyer agreed to assume

the economic burden of the disqualification requirement. Under Section 9(b), a

litigator in a law firm with which the collaborative lawyer is associated could

not, for example, represent the same party in litigation related to the matter if

collaborative law concludes.

This rule of imputed disqualification is supported by the basic principle of

professional responsibility that “[w]hile lawyers are associated in a firm, none

of them shall knowingly represent a client when any one of them practicing

alone would be prohibited from doing so . . . .” M

ODEL RULES OF PROF’L

CONDUCT R. 1.10(a) (2009). The comment to this Rule states:

The rule of imputed disqualification stated in paragraph (a) gives effect

to the principle of loyalty to the client as it applies to lawyers who

practice in a law firm. Such situations can be considered from the

premise that a firm of lawyers is essentially one lawyer for purposes of

the rules governing loyalty to the client, or from the premise that each

lawyer is vicariously bound by the obligation of loyalty owed by each

lawyer with whom the lawyer is associated.”

Id. R. 1.10 cmt. 2.

Exception to Imputed Disqualification for Low-Income Parties

Section 10 modifies the imputed disqualification rule for lawyers in law

firms with which the collaborative lawyer is associated which represents a very

low-income client without fee. The goal of this section is to allow the legal aid

office, law firm, law school clinic, or the private firm doing pro bono work to

continue to represent the party in the matter if collaborative law concludes.

Section 10 only applies to parties with “an annual income that qualifies the

2009] UNIFORM COLLABORATIVE LAW ACT 453

party for free legal representation under the criteria established by the law firm

for free legal representation.” See infra § 10(b)(1). Many legal aid offices, for

example, use 125% of federal poverty guidelines as a general eligibility

criterion. See Legal Aid of Neb., FAQ, http://www.nebls.com/FAQLAN (last

visited May 25, 2010); Legal Aid Soc’y of New York City, Frequently Asked

Questions about the Legal Aid Society, http://www.legal-aid.org/en/aboutus/

legalaidsocietyfaq.aspx (last visited May 25, 2010).

The conditions for such continued representation are that all parties to the

collaborative law participation agreement consent to this departure from the

imputed disqualification rule in advance. See infra § 10(b)(2). In addition, the

collaborative lawyer must be screened from further participation in the

collaborative matter and matters related to the collaborative matter. See infra

§ 10(b)(3).

The exception to the imputed disqualification rule in section 10 is based on

the recognition that “[a]t least 80 percent of low-income Americans who need

civil legal assistance do not receive any . . . .” Evelyn Nieves, 80% of Poor Lack

Civil Legal Aid, Study Says, W

ASH. POST, Oct. 15, 2005, at A9. Legal aid

programs reject approximately one million cases per year for lack of resources

to handle them, a figure which does not include those who did not attempt to get

legal help. Id.; L

EGAL SERV. CORP., DOCUMENTING THE JUSTICE GAP IN

AMERICA 5 (2d ed. 2007), available at http://www.lsc.gov/JusticeGap.pdf. The

Legal Services Corporation recently did a study about the lack of civil legal

services for low-income Americans. The results show that only one-fifth or less

of the legal problems experienced by low-income people are helped by either

pro bono or paid legal aid attorneys and only half of those who seek help will

actually get legal help. L

EGAL SERV. CORP., supra, at 4. In 2002, there was one

private attorney to every 525 people from the general population. Id. at 15. In

that same year, there was only one legal aid attorney to every 6,861 people in

poverty. Id.

The need for civil legal representation for low-income people is particularly

acute in family law disputes. Recent studies have found that almost seventy

percent of family law litigants do not have a lawyer on either side of a

proceeding when the proceeding is filed in court, and the percentage increases

to eighty percent by the time the matter is final. See, e.g., T

ASK FORCE ON SELF-

REPRESENTED LITIGANTS, JUDICIAL COUNCIL OF CAL., STATEWIDE ACTION

PLAN FOR SERVING SELF-REPRESENTED LITIGANTS 11, available at

http://www.courtinfo.ca.gov/programs/cfcc/pdffiles/Full_Report.pdf. Forty-nine

percent of petitioners and eighty-one percent of respondents were self-

represented in Utah divorce cases in 2005. C

OMM. ON RES. FOR SELF-

EPRESENTED PARTIES, STRATEGIC PLANNING INITIATIVE: REPORT TO THE

JUDICIAL COUNCIL 5 (2006), available at http://www.utcourts.gov/resources/

reports/Self%20Represented%20Litigants%20Strategic%20Plan%202006.pdf.

Low-income clients thus already face great difficulty in securing

representation. They would face especially harsh consequences if collaborative

law terminates without agreement and virtually all lawyers who might continue

their representation are disqualified from doing so by imputed disqualification.

For most other parties, the disqualification requirement imposes a hardship, but

454 HOFSTRA LAW REVIEW [Vol. 38:421

they at least have the financial resources to engage new counsel. Low-income

clients, however, are unlikely to obtain a new lawyer from any other source.

The ABA Model Rules of Professional Conduct make a similar accommodation

to the needs of low-income parties by exempting non-profit and court-annexed

limited legal services programs from the imputed disqualification rule

applicable to for-profit firms.

MODEL RULES OF PROF’L CONDUCT R. 6.5 (2009).

The relaxation of the imputed disqualification rule for low-income clients of

section 10 will, hopefully, encourage legal aid offices, law school clinical

programs and private law firms who represent the poor through pro bono

programs to incorporate collaborative law into their practice.

Exception to Imputed Disqualification for Government Parties

Section 11 of the act creates an exception to imputed disqualification

similar to that in section 10 for lawyers in a law firm with which a collaborative

lawyer is associated which represents government parties. The act’s definition

of “law firm” includes “the legal department of a government or government

subdivision, agency, or instrumentality.” See infra § 2(6).

Section 11 is based on the policy that taxpayers should not run the risk of

the government having to pay for private outside counsel if collaborative law

terminates because all the lawyers in the agency are disqualified from further

representation. The conditions for the continued representation are advance

consent of all parties to the continued representation and the screening of the

individual collaborative lawyer from further participation in it and related

matters. See infra § 11(b).

The policy behind Section 11 is supported by Rule 1.11 of the ABA Model

Rules of Professional Conduct, which creates an exception to the general rule of

imputed disqualification for government lawyers “[b]ecause of the special

problems raised by imputation within a government agency,” although

“ordinarily it will be prudent to screen such lawyers.” M

ODEL RULES OF PROF’L

CONDUCT R. 1.11 cmt. 2 (2009). Courts also are willing to recognize screening

of individual attorneys for government agencies as a desirable alternative to a

wholesale disqualification of an entire agency. See, e.g., United States v. Goot,

894 F.2d 231, 235-37 (7th Cir. 1990) (not allowing the disqualification of the

U.S. Attorney’s Office when a screen was in place for the head of the office

who was previously the defendant’s attorney); see also United States v.

Caggiano, 660 F.2d 184, 187, 191 (6th Cir. 1981) (denying disqualification of

federal prosecutor’s office even though a new assistant prosecutor had

previously represented the accused, when individual attorney was not assigned

to present matter).

Voluntary Disclosure of Information in Collaborative Law

“Except as provided by law other than this act,” section 12 requires parties

to a collaborative law participation agreement to “make timely, full, candid, and

informal disclosure of information related to the collaborative matter without

formal discovery.” It also requires parties to “update promptly previously

disclosed information that has materially changed.” See infra § 12. Finally,

2009] UNIFORM COLLABORATIVE LAW ACT 455

section 12 authorizes parties to “define the scope of disclosure during the

collaborative law process.”

Voluntary disclosure of information is a hallmark of collaborative law.

Participation in ADR processes like collaborative law typically does not include

the authority to compel one party to provide information to another. Jack M.

Sabatino, ADR as “Litigation Lite”: Procedural and Evidentiary Norms

Embedded Within Alternative Dispute Resolution, 47 E

MORY L.J. 1289, 1314

(1998). A collaborative law participation agreement typically requires timely,

full, candid and informal disclosure of information related to the collaborative

matter. Strickland, supra, at 984-85. Voluntary disclosure helps to build trust

between the parties, a crucial prerequisite to a successful resolution of the

collaborative matter. P

AULINE TESLER, COLLABORATIVE LAW: ACHIEVING

EFFECTIVE RESOLUTION IN DIVORCE WITHOUT LITIGATION 98-99 (2001). It is

also less expensive than formal discovery. Douglas C. Reynolds & Doris F.

Tennant, Collaborative Law—An Emerging Practice, B

OSTON B. J., Nov.-Dec.

2001, at 12, 12. Similar requirements have been established for parties in

mediation. See, e.g., G

A. SUP. CT. ALTERNATIVE DISPUTE RESOLUTION R. app.

C, ch. 1(A)(I)(A)(7), available at http://www.godr.org/pdfs/CURRENTADR

RULESCOMPLETE9-8-09.pdf (referring to the expectation of parties who

participate in mediation “to negotiate in an atmosphere of good faith and full

disclosure of matters material to any agreement reached”).

The obligation of voluntary disclosure imposed by Section 12 on parties to

a collaborative law process reflects a trend in civil litigation to encourage

voluntary disclosure without formal discovery requests early in a matter in the

hope of encouraging careful assessment and settlement. The Federal Rule of

Civil Procedure, for example, requires that a party to litigation disclose names

of witnesses, documents, and computation of damages “without awaiting a

discovery request.” F

ED. R. CIV. P. 26(a)(1)(A). These early automatic

disclosures were based on a consensus by an advisory committee which drafted

the rule that the adversarial discovery process for obtaining information had

proven to be unduly time consuming and expensive. See generally F

ED. R. CIV.

P. 26(a) advisory committee’s note (1993).

Like section 12, the Federal Rules of Civil Procedure also require parties to

supplement or correct a discovery response without request of the other side if

“the party learns that in some material respect the disclosure or response is

incomplete or incorrect, and if the additional or corrective information has not

otherwise been made known to the other parties during the discovery process or

in writing.” F

ED. R. CIV. P. 26(e)(1)(A); see also Argusea LDC v. United States,

622 F. Supp. 2d 1322, 1327-28 (S.D. Fla. 2008) (concluding that a party is not

bound by original answer to interrogatories if properly supplemented under

26(e)(1)(A)); Inline Connection Corp. v. AOL Time Warner Inc., 472 F. Supp.

2d 604, 612 (D. Del. 2007) (stating that an expert report that is not properly

amended under Fed. R. Civ. P. 26(e)(2) is not admissible evidence in court,

unless the error was harmless). Many states impose similar obligations on

parties. See, e.g., R.I.

SUP. CT. R. CIV. P. 26(e) (stating that a party has a duty to

supplement a response to discovery with information gained after the initial

response).

456 HOFSTRA LAW REVIEW [Vol. 38:421

The act does not specify sanctions for a party who does not comply with the

requirements of section 12. The drafters felt that any attempt to do so would

require the act to define “bad faith” failure to disclose. The result would be the

opposite of what the act seeks to encourage—more resolution of disputes

without resort to the courts. Courts would have to hold contested hearings on

whether party conduct met its definition of bad faith failure to disclose before

awarding sanctions. Such adversarial contests would also require evidence to be

presented about what transpired during the collaborative law process which, in

turn, would require courts to breach the privilege—and the policy of

confidentiality of collaborative law communications—that the Uniform

Collaborative Law Act seeks to create. See John Lande, Using Dispute System

Design Methods to Promote Good-Faith Participation in Court-Connected

Mediation Programs, 50 UCLA

L. REV. 69, 102-03 (2002) [hereinafter Lande,

Using Dispute System Design Methods].

It is important to remember that a party can unilaterally terminate

collaborative law at any time and for any reason, including failure of another

party to produce requested information. See infra § 5(b), (f). Thus, if a party

wishes to abandon collaborative law in favor of litigation for failure of

voluntary disclosure, the party is free to do so and to engage in any court

sanctioned discovery that might be available. Most disputed matters that reach

the formal litigation system settle before trial and before completion of formal

discovery. Parties to a collaborative law process are thus no different than

parties who participate in litigation or other dispute resolution processes in

having to make cost-benefit assessments with the aid of their counsel about

whether they have enough information from the informal process of disclosure

to settle at any particular time or need or want more. Stephen N. Subrin,

Reflections on the Twin Dreams of Simplified Procedure and Useful

Empiricism, 35 W.

ST. U. L. REV. 173, 183 (2007).

Moreover, nothing in section 12 changes the standards under which

agreements or settlements that result from a collaborative law process are

approved by a tribunal, or can be reopened or voided because of a failure of

disclosure. Those standards are determined by law other than this act. Relevant

doctrines such as fraud, constructive fraud, reliance, disclosure requirements

imposed by fiduciary relationships, disclosure of special facts because of

superior knowledge and access to information are not affected by the act. Courts

can order settlement agreements voided or rescinded because of failure of

disclosure in appropriate circumstances. See, e.g., Digital Equip. Corp. v.

Desktop Direct Inc., 511 U.S. 863, 866, 884 (1994); Terwilliger v. Terwilliger,

64 S.W.3d 816, 818-19 (Ky. 2002); Shafmaster v. Shafmaster, 642 A.2d 1361,

1364-65 (N.H. 1994); Spaulding v. Zimmerman, 116 N.W.2d 704, 709-10

(Minn. 1962); Rocca v. Rocca 760 N.E.2d 677, 681 (Ind. Ct. App. 2002);

Billington v. Billington, 606 A.2d 737, 737-38 (Conn. App. Ct. 1992).

Many states, for example, mandate compulsory financial disclosure in

divorce cases even without a specific request from the other party. See N.Y.

DOM. REL. § 236(B)(4) (McKinney 1999) (mandating compulsory disclosure of

specific financial information without a request from the other party); A

LASKA

R. CIV. P. 26.1 (2009) (listing information that must be disclosed to the other

2009] UNIFORM COLLABORATIVE LAW ACT 457

party in a divorce proceeding even in the absence of a request). Resolution of

divorce disputes in such states without these mandated disclosures would create

a risk of a malpractice action against a collaborative lawyer who advised a party

to accept such a settlement. See, e.g., Callahan v. Clark, 901 S.W.2d 842, 847-

48 (Ark. 1995); Grayson v. Wofsey, 646 A.2d 195, 199-200 (Conn. 1994). It

would also be surprising if courts approved agreements in settlement of

particular kinds of matters such as divorce, infants’ estates, or class actions

without the kind of pre-agreement disclosure typical for such matters. See F

ED.

R. CIV. P. 23(e) (standard for judicial evaluation of settlement of a class action,

which is that the settlement must be fair, adequate, and reasonable); UNIF.

MARRIAGE & DIVORCE ACT § 306(d) (2008) (Parties agreement may be

incorporated into the divorce decree if the court finds that it is not

“unconscionable” regarding the property and maintenance and not

“unsatisfactory” regarding support); Robert H. Mnookin, Divorce Bargaining:

The Limits on Private Ordering, 18 U.

MICH. L.J. REFORM 1015, 1016 (1985).

Section 13 also allows the parties to reach their own agreement on the

scope of disclosure during the collaborative law process. The standards for what

must be disclosed during a collaborative law process will thus vary depending

on the nature of the matter, the participation agreement, and the assessment by

parties and their counsel about their need for more information to make an

informed settlement. Should the parties choose to provide more detailed

standards for their voluntary disclosure or to require formal or semi-formal

discovery demands they can do so in their collaborative law participation

agreement. See Charles J. Moxley, Jr., Discovery in Commercial Arbitration:

How Arbitrators Think, D

ISP. RESOL. J. Aug.-Oct. 2008, at 36, 39-40 (in

arbitration, the contract may specify how much discovery will be allowed, or

the attorneys for the parties may agree on the scope of discovery prior to the

preliminary conference with the arbitrator).

The standards the parties agree on for disclosure in their participation

agreements are, of course, subject to the provisions of other law which are not

changed by this act. As noted above, many states, for example, mandate

compulsory financial disclosure in divorce cases. Federal Rule of Civil

Procedure 26(c) mandates disclosure in federal civil cases, and similar

provisions exist in state law in different areas. See, e.g., N.Y. C.P.L.R. 3101

(McKinney 2005) (requiring pre-trial disclosure of the qualifications and

expected testimony of expert witness); 42 P

A. CONS. STAT. ANN.

§ 1340(B)(1)(e) (West 2007) (mandating disclosures by agency in child

dependency proceeding); M

ICH. CT. R. 6.201 (mandating pre-trial disclosures in

criminal cases). Parties in collaborative law should take these provisions into

account in devising agreements concerning the scope of their disclosure.

Informed Consent to Participation in Collaborative Law

As previously discussed, the bar ethics committee’s opinions that find

collaborative law consistent with the lawyer’s professional responsibility

standards emphasize the importance of parties entering into collaborative law

with informed consent. “[F]avoring more client autonomy [in contractual

arrangements with lawyers] places great stress on the need for full lawyer

458 HOFSTRA LAW REVIEW [Vol. 38:421

disclosure and informed client consent before entering into agreements that pose

significant risks for clients.” Schneyer, supra, at 320.

Section 14 thus places a duty on a potential collaborative lawyer to actively

facilitate client informed consent to participate in collaborative law. The Model

Rules of Professional Conduct define informed consent as “the agreement by a

person to a proposed course of conduct after the lawyer has communicated

adequate information and explanation about the material risks of and reasonably

available alternatives to the proposed course of conduct.” M

ODEL RULES OF

PROF’L CONDUCT R. 1.0(e) (2002). See Conklin v. Hannoch Weisman, 678 A.2d

1060, 1069 (N.J. 1996) (“An attorney in a counseling situation must advise a

client of the risks of the transaction in terms sufficiently clear to enable the

client to assess the client’s risks. The care must be commensurate with the risks

of the undertaking and tailored to the needs and sophistication of the client.”).

The act’s requirements for a lawyer to facilitate informed client consent to

participate in collaborative law are consistent with this general standard, but are

more detailed and tailored to collaborative law participation agreements. The

prospective collaborative lawyer is required to “assess with the prospective

party factors the [prospective collaborative] lawyer reasonably believes relate to

whether a collaborative law process is appropriate for the prospective party’s

matter.” See infra § 14(1) (emphasis added). The lawyer must also “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 . . . other reasonably

available” forms of dispute resolution such as litigation, mediation, arbitration

or expert evaluation. See infra § 14(2). The act adopts the previously mentioned

requirement of many states that lawyers identify and discuss the costs and

benefits of other reasonable dispute resolution options with a potential party to

collaborative law, including litigation, cooperative law, mediation, expert

evaluation, or arbitration or some combination of these processes. Lande &

Herman, supra, at 281. The act also requires that a lawyer describe the benefits

of collaborative law to a potential party, along with its essential risk―that

termination of the process, which any party has the right to do at any time, will

cause the disqualification provision to take effect, imposing the economic and

emotional costs on all parties of engaging new counsel. See infra § 14(3).

The act thus envisions the lawyer as an educator of a prospective party

about the appropriate factors to consider in deciding whether to participate in a

collaborative law process. It also contemplates a process of discussion between

lawyer and prospective party that asks that the lawyer do more than lecture a

prospective party or provide written information about collaborative law and

other options. Collaborative lawyers should, of course, consider how to

document the process of informed consent and a party’s decision to enter into a

collaborative law process through a provision of appropriate written documents.

Hopefully, lawyers who seek informed consent will take steps to continuously

make the information they provide to prospective parties ever easier to

understand and more complete. See Mosten, Collaborative Law Practice, supra,

at 172-73 (listing methods for obtaining informed consent).

2009] UNIFORM COLLABORATIVE LAW ACT 459

The act thus specifies the overall goals and standards of the process of

seeking informed client consent to participate in collaborative law. It leaves to

the collaborative lawyer the specific methods of achieving informed client

consent. “Lawyers should provide thorough and balanced descriptions of

[collaborative law] practice, including candid discussion of possible risks.” John

Lande & Forrest S. Mosten, Collaborative Lawyers’ Duties to Screen the

Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to

Use Collaborative Law, 25 O

HIO ST. J. ON DISP. RESOL. 347 (2010).

Lawyers may understandably worry about losing possible

[collaborative law] cases if they provide more thorough and balanced

information. . . . [T]his risk of losing business is outweighed by the

professional and practice benefits (and obligations) of full disclosure

and truly informed consent. By providing appropriate information

before parties decide whether to use [collaborative law] lawyers can

have greater confidence that parties will have realistic expectations,

participate in the process more constructively and will be less likely to

terminate a [collaborative law] case.

Id. at 64 (footnotes omitted).

Collaborative Law and Coercive and Violent Relationships

While the act does not limit the reach of collaborative law to divorce and

family disputes, it does systematically address the problem of domestic

violence. The most significant provision of the act’s approach to domestic

violence is the obligation it places on collaborative lawyers to make “reasonable

inquiry whether the [party or] prospective party has a history of a coercive or

violent relationship with another [party or] prospective party.” See infra § 15(a).

If the lawyer “reasonably believes” the party the lawyer represents has such a

history, the lawyer may not begin or continue a collaborative law process unless

the party so requests and the lawyer “reasonably believes” the party’s safety

“can be protected adequately during the collaborative law process.” See infra

§ 15(c).

The act attempts no definition of domestic violence, as that term is defined

differently in different states. For example, Delaware, Maine, and New Mexico

define domestic violence to include not only physical acts of violence, but also

acts that cause emotional distress such as stalking and harassment, as well as

destruction of property, trespassing, and forcing a person to engage in certain

conduct through threats and intimidation. D

EL. CODE ANN. tit. 10, § 1041 (2006

& Supp. 2009); ME. REV. STAT. ANN. tit. 19-A, § 4002 (1964, supp. 2008);

N.M. S

TAT. ANN. § 40-13-2 (West 2003 & Supp. 2008). Colorado and Idaho, in

contrast, limit domestic violence to actual or threats of physical assault. C

OLO.

REV. STAT. ANN. § 13-14-101 (West 2005); IDAHO CODE ANN. § 39-6303 (2002

& Supp. 2008).

To avoid definitional difficulties, the act instead uses the term “coercive or

violent relationship” instead of domestic violence. See infra § 15. This term

encapsulates the core characteristics of a relationship characterized by domestic

violence: “[p]hysical abuse, alone or in combination with sexual, economic or

460 HOFSTRA LAW REVIEW [Vol. 38:421

emotional abuse, stalking or other forms of coercive control, by an intimate

partner or household member, often for the purpose of establishing and

maintaining power and control over the victim.” C

OMM’N ON DOMESTIC

VIOLENCE, AM. BAR ASS’N, STANDARDS OF PRACTICE FOR LAWYERS

REPRESENTING VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT AND

STALKING IN CIVIL PROTECTION ORDER CASES 1 (2007). Physical violence or

the threat thereof is an element of a coercive and violent relationship but the

concept is broader, focusing on the perpetrator’s pattern or practice of

intimidation.

There is no doubt that coercive and violent relationships are an element in a

significant number of matters that find their way to the legal system and pose a

serious, potentially lethal, threat to the safety of a significant number of victims

and dependents. They can arise in many different legal contexts such as a

divorce or parenting dispute, the dissolution of a business between formerly

intimate partners or in the abuse of the elderly surrounding the distribution of an

estate. See, e.g., Farrell v. Farrell, 819 P.2d 896, 897-98 (Alaska 1991) (violent

relationship in a divorce case); People v. Irvine, 882 N.E.2d 1124, 1127 (Ill.

App. Ct. 2008) (defendant’s assault of his girlfriend); Hicks v. Hicks, 733 So.

2d 1261, 1262, 1266 (La. Ct. App. 1999) (domestic violence in a divorce and

child custody suit); R.H. v. State, 709 So. 2d 129, 130 (Fla. Dist. Ct. App. 1998)

(domestic violence by the defendant against the defendant’s mother); In re

Custody of Williams, 432 N.E.2d 375, 376-77 (Ill. App. Ct. 1982) (domestic

violence in a child custody case). Advocates for victims of domestic violence

have, over many years, made great progress in helping make the legal system

more responsive to the needs of victims of domestic violence. Nonetheless,

there is much we do not know about domestic violence, and many challenges

remain.

Because of definitional differences and research difficulties we do not

know, for example, exactly what percentage of disputes which find their way to

lawyers and courts involve coercion and violence. Furthermore, despite public

education campaigns, victims still are often reluctant to disclose the abuse they

suffer. See Nancy Ver Steegh & Clare Dalton, Report from the Wingspread

Conference on Domestic Violence and Family Courts, 46 F

AM. CT. REV. 454,

460 (2008) (report of working group of experienced practitioners and

researchers convened by the National Council of Juvenile and Family Court

Judges and the Association of Family and Conciliation Courts summarizing the

state of research about domestic violence and discussing challenges in making

family court interventions more effective with families in which domestic

violence has been identified or alleged).

A coercive and violent relationship between parties is a serious problem for

the collaborative law process and all forms of ADR. An abuser’s desire to

maintain dominance and control is inconsistent with the self determination that

the collaborative law process assumes. Fear of an abuser may prevent the victim

from asserting needs and a collaborative law session may give abusers access to

a victim. Resulting agreements may be unsafe for the victim or children. A

victim of a coercive and violent relationship could be additionally harmed if her

2009] UNIFORM COLLABORATIVE LAW ACT 461

lawyer is disqualified from further representation if collaborative law

terminates.

On the other hand, sporadic incidents not part of an overall pattern of

coercion and violence do occur in divorce and family and other disputes,

sometimes allegations of violence are exaggerated, and in some circumstances,

victims want and may be able to participate in a process of ADR like

collaborative law if their safety is assured. See Nancy Ver Steegh, Yes, No, and

Maybe: Informed Decision Making About Divorce Mediation in the Presence of

Domestic Violence, 9 W

M. & MARY J. WOMEN & L. 145, 196 (2003).

Reconciling the need to insure safety for victims of domestic violence with the

party autonomy that ADR processes such as collaborative law promotes and

assumes is thus a significant and continuing challenge for policy makers and

practitioners. See Peter Salem & Billie Lee Dunford-Jackson, Beyond Politics

and Positions: A Call for Collaboration Between Family Court and Domestic

Violence Professionals, 46 F

AM. CT. REV. 437, 444-50 (2008) (Executive

Director of the Association of Family and Conciliation Courts and Co-Director

of the Family Violence Department of the National Council of Juvenile and

Family Court Judges examine practical, political, definitional and ideological

differences between family court professionals who emphasize ADR and

domestic violence advocates and call for collaboration on behalf of families and

children).

Section 15 thus requires a collaborative lawyer to make a reasonable

effort to screen a potential party to collaborative law for a history of a coercive

and violent relationship. Brief screening protocols already exist which lawyers

can use to satisfy the obligation imposed by the act. See C

OMM’N ON DOMESTIC

VIOLENCE, AM. BAR ASS’N, TOOL FOR ATTORNEYS TO SCREEN FOR DOMESTIC

VIOLENCE (2005), http://www.abanet.org/domviol/screeningtoolcdv.pdf; see

also O

FFICE OF DISPUTE RESOLUTION, MICH. SUP. CT., DOMESTIC VIOLENCE

AND

CHILD ABUSE/NEGLECT SCREENING FOR DOMESTIC RELATIONS

MEDIATION: MODEL SCREENING PROTOCOL 10-19 (2006). These obligations

placed on collaborative lawyers by the act to incorporate screening and

sensitivity to domestic violence in their representation of parties parallel

obligations placed on mediators. M

ODEL STANDARDS OF PRACTICE FOR FAMILY

& DIVORCE MEDIATION Standard X (Symposium on Standards of Practice 2000)

(“A family mediator shall recognize a family situation involving domestic abuse

and take appropriate steps to shape the mediation process accordingly.”). “If

domestic abuse appears to be present the mediator

shall consider taking measures to insure the safety of

participants . . . including . . . suspending or terminating the mediation sessions,

with appropriate steps to protect the safety of the participants.” Id. at Standard

X(D).

Section 15(c) requires that the lawyer not commence or continue a

collaborative law process if the lawyer reasonably believes a potential party or

party is a victim of domestic violence unless the victim consents and the lawyer

reasonably believes that the victim’s safety can be protected while the process

goes on. These conditions are designed to insure that the autonomy and decision

making power of the victim of domestic violence are respected in the decision

462 HOFSTRA LAW REVIEW [Vol. 38:421

to go forward or not with collaborative law. Many state statutes allow victims of

domestic violence to opt out of mediation. See, e.g., U

TAH CODE ANN. § 30-3-

22(1) (Supp. 1994); see also F

LA. STAT. ANN. § 44.102(2)(c) (2003)

(establishing that where mediation is used, the court shall not refer to mediation

any case in which there is a history of domestic violence that would impact the

effectiveness of mediation). See generally C

OMM’N ON DOMESTIC VIOLENCE,

AM. BAR ASS’N, MEDIATION IN FAMILY LAW MATTERS WHERE DV IS PRESENT

(2008), http://www.abanet.org/domviol/docs/Mediation_1_2008.pdf (comprehensive

listing of state legislation and rules on subject as of the date of the compilation,

which includes the notation “[t]he law is constantly changing”). Section

15(c)(1) extends a similar option to collaborative law by requiring the victim’s

consent to begin or continue the process.

The act requires the collaborative lawyer’s “reasonable belief” and

“reasonable efforts” to insure safety of victims of violence and coercion in a

collaborative law process. Applying a brief screening protocol is a useful step

but not a guarantee that a lawyer will discover a party with a history of domestic

violence. The lawyer is also not an absolute guarantor of the safety of a party or

of fair results if a victim of a coercive and violent relationship chooses to go

forward with a collaborative law process. The act requires only that the lawyer

do what a reasonable lawyer faced with a similar history of violence and

coercion would do. But see Margaret Drew, Lawyer Malpractice and Domestic

Violence: Are We Revictimizing Our Clients?, 39 F

AM. L.Q. 7, 9-10, 12 (2005)

(arguing that a lawyer commits malpractice when he or she fails to recognize

when a client is or has been abused by a partner and fails to consider that factor

in providing legal representation to the client). A collaborative lawyer should

generally discuss the option of beginning, continuing or terminating a

collaborative law process with the victim with great care and sensitivity, and

memorialize the victim’s decision in writing if possible.

The act addresses concerns about coercion and violence in several other

sections. Section 7 creates an exception to the stay of proceedings created by

filing a notice of collaborative law with a tribunal for “emergency orders to

protect the health, safety, welfare or interest of a party or family or household

member.” Section 9(c)(2) also creates an exception to the disqualification

requirement for a collaborative lawyer and lawyers in a law firm with which the

collaborative lawyer is associated to represent a victim or an alleged abuser in

proceedings seeking such emergency orders if other lawyers are not

immediately available. These sections insure that a victim of coercion and

violence and an alleged abuser who participate in collaborative law will

continue to have the assistance of counsel and access to the court in the face of

an immediate threat to her safety or that of her dependent. They are consistent

with the Model Rules of Professional Conduct provisions that “a lawyer may

withdraw from representing a client if . . . withdrawal can be accomplished

without material adverse effect on the interests of the client,” and that “[u]pon

termination of representation, a lawyer shall take steps to the extent reasonably

practicable to protect a client’s interests.” M

ODEL RULES OF PROF’L CONDUCT

R. 1.16(b) (2002) (emphasis added).

2009] UNIFORM COLLABORATIVE LAW ACT 463

Finally, the act, like the Uniform Mediation Act, creates an exception to the

evidentiary privilege otherwise extended to a collaborative law communication

which is: “a threat or statement of a plan to inflict bodily injury or commit a

crime of violence,” Section 19(a)(2); or is “intentionally used to plan a crime,

commit or attempt to commit a crime, or conceal an ongoing crime or ongoing

criminal activity,” Section 19(a)(3); or is “sought or offered to prove or disprove

abuse, neglect, abandonment, or exploitation of a child,” Section 19(b)(2).

These exceptions recognize that the need for confidentiality in collaborative law

communications must yield to the value of protecting the safety of victims of

coercion and violence.

The act does not, however, prescribe special qualifications and training in

domestic violence for collaborative lawyers and other professionals who

participate in the collaborative law process for fear of inflexibly regulating a

still-developing dispute resolution process. The act also takes this position to

minimize the previously mentioned risk of raising separation of powers

concerns in some states between the judicial branch and the legislature in

prescribing the conditions under which attorneys may practice law. See supra

p. 449 (discussing the act’s lack of prescription for special qualifications and

training in domestic violence for collaborative lawyers). The drafters recognize

that representing victims of coercion and violence is a complex task requiring

specialized knowledge, especially when the representation occurs in dispute

resolution processes like collaborative law which rely heavily on self-

determination by parties. They encourage collaborative lawyers who represent a

party with a history of coercion and violence to be familiar with nationally

accepted standards of practice for representing victims. These include standards

created by the ABA—the Standards of Practice for Representing Victims of

Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases

(2007); Standards of Practice for Lawyers Who Represent Children in Abuse

and Neglect Cases (1996); and Standards of Practice for Lawyers Who

Represent Parents in Abuse and Neglect Cases (2005).

Collaborative Law Communications and Evidentiary Privilege

A major contribution of the Uniform Collaborative Law Act is to create a

privilege for collaborative law communications in legal proceedings, where it

would otherwise either not be available or not be available in a uniform way

across the states. The Uniform Collaborative Law Act’s privilege for

communications made in the collaborative law process is similar to the privilege

provided to communications during mediation by the Uniform Mediation Act.

Protection for confidentiality of communications is central to collaborative

law. Parties may enter collaborative law with fear that what they say during

collaborative law sessions may be used against them in later proceedings.

Without assurances that communications made during the collaborative law

process will not be used to their detriment later, parties, collaborative lawyers

and nonparty participants such as mental health and financial professionals will

be reluctant to speak frankly, test out ideas and proposals, or freely exchange

information. Undermining the confidentiality of the process would impair full

use of collaborative law. Lande, Good Faith Participation, supra, at 102.

464 HOFSTRA LAW REVIEW [Vol. 38:421

Confidentiality of communications can also refer to broader concepts than

admission of the information into the formal record of a proceeding. It is

possible for collaborative law communications to be disclosed outside of legal

proceedings, for example, to family members, friends, business associates, the

press, and the general public. Like the Uniform Mediation Act, however, the

Uniform Collaborative Law Act limits statutory protections for confidentiality

to legal proceedings. It does not prohibit disclosure of collaborative law

communications to third parties outside of legal proceedings. That issue is left

to the agreement of the parties as expressed in their collaborative law

participation agreements, other bodies of law, and to the ethical standards of the

professions involved in collaborative law. See infra § 16; see also M

ODEL

RULES OF PROF’L CONDUCT R. 1.6 (2009) (stating that an attorney is required to

keep in confidence “information relating to the representation of a client unless

the client gives informed consent [or] the disclosure is impliedly authorized in

order to carry out the representation” or under a few exceptions, including,

among others, when it is necessary to prevent reasonably certain death or

substantial bodily harm or to comply with a court order or law).

The drafters believe that a statute is required only to assure that aspect of

confidentiality relating to evidence compelled in judicial and other legal

proceedings. Parties uniformly expect that aspect of confidentiality to be

enforced by the courts, and a statute is required to ensure that it is. Parties’

expectations of additional confidentiality need clarification by mutual

agreement. Do they want, for example, to be able to reveal collaborative law

communications regarding a potential divorce settlement agreement concerning

children to friends and family members for the purposes of seeking advice and

emotional comfort? Parties can answer questions like that “yes” or “no” or

“sometimes” in their agreements depending on their particular needs and

orientation.

Parties can expect enforcement of their agreement to keep communications

more broadly confidential through contract damages and, sometimes, specific

enforcement. The courts have also enforced court orders or rules regarding

nondisclosure through orders to strike pleadings and fine lawyers. See U

NIF.

MEDIATION ACT § 8 cmt. a, 7A U.L.A. 138 (2006); see also Bernard v. Galen

Group, Inc., 901 F. Supp. 778, 784 (S.D.N.Y. 1995); Paranzino v. Barnett Bank

of S. Fla., 690 So. 2d 725, 729-30 (Fla. Dist. Ct. App. 1997).

Promises, contracts, and court rules or orders are unavailing, however, with

respect to discovery, trial, and otherwise compelled or subpoenaed evidence.

While the earliest recognized privileges were judicially created, this practice

stopped over a century ago. See 1

MCCORMICK ON EVIDENCE § 75, at 136

(Kenneth S. Broun ed., 6th ed. 2006). Today, evidentiary privileges are rooted

within legislative action; some state legislatures have even passed statutes

which bar court-created privileges. See, e.g., C

AL. EVID. CODE § 911 (West

2009); W

IS. STAT. ANN. § 905.01 (West 2000).

The settlement negotiations privilege does not provide the same level of

protection for collaborative law communications as does the privilege created

by the act. Under the Federal Rules of Evidence, and similar state rules of

evidence, while a settlement offer and its accompanying negotiations may not

2009] UNIFORM COLLABORATIVE LAW ACT 465

be admitted into evidence in order to prove liability or invalidity of a claim or

its amount, it may be admissible for a variety of other purposes. F

ED. R. EVID.

408; see also Lohman v. Duryea Borough, 574 F.3d 163, 167 (3d Cir. 2009)

(“Rule 408 does not bar a court's consideration of settlement negotiations in its

analysis of what constitutes a reasonable [attorney’s] fee award.”); Lo Bosco v.

Kure Eng’g Ltd., 891 F. Supp. 1035, 1039-40 (D.N.J. 1995) (plaintiff’s offer of

reconciliation to spouse in letters related to a divorce proceeding is not

admissible as an admission of liability in subsequent lawsuit against spouse

based on failed business relationships, but is admissible for other purposes such

as proving plaintiff’s bias or prejudice, or negating a contention of undue

delay); FDIC v. Moore, 898 P.2d 1329, 1332 (Okla. Civ. App. 1995) (trial court

erred in holding the debtors’ letter offers of settlement inadmissible because

they were admissible on the issue of commencement of a new statute of

limitations period). See generally 32 C.J.S. Evidence

§ 523 (2008) (citing

relevant examples of case law in fourteen states).

By contrast, the Uniform Collaborative Law Act provides for a broader

prohibition on later disclosure of communications within the collaborative law

process in the legal process, making those communications inadmissible for any

purpose other than those specified in the act. For example, the evidentiary

privilege in the act applies to an array of communications, not limited to those

produced in a formal four-way session such as communications before the

session begins and in preparation for the session. In addition, the privilege

allows parties to block not only their own testimony from future disclosure, but

also communications by any other participant in the collaborative law process

such as jointly retained experts. To encourage non-parties such as mental health

professionals and financial experts to participate in collaborative law, the act

gives them a privilege to block their own communications from being

introduced into evidence.

The act also explicitly lists the exceptions to the evidentiary privilege it

creates. As with the privilege for mediation communications, the privilege for

collaborative law communications has limits and exceptions codified in sections

18 and 19, primarily to give appropriate weight to other valid justice system

values, such as the protections of bodily integrity and to prosecute and protect

against serious crime. They often apply to situations that arise only rarely, but

might produce grave injustice in that unusual case if not excepted from the

privilege.

The Need for a Uniform Collaborative Law Act

It is foreseeable that collaborative law participation agreements and

sessions will cross jurisdictional boundaries as parties relocate, and as the

collaborative law process is carried on through conference calls between

collaborative lawyers and parties in different states and even over the Internet.

Choice of law determinations can be complex and the standards to resolve them

sometimes indeterminate. See U

NIF. TRUST CODE § 107, 7C U.L.A. 436 (2000)

(requiring courts to determine the meaning and effect of the terms of a trust by

reference to “the law of the jurisdiction designated in the terms unless the

designation of that jurisdiction’s law is contrary to a strong public policy of the

466 HOFSTRA LAW REVIEW [Vol. 38:421

jurisdiction having the most significant relationship to the matter at issue; or in

the absence of a controlling designation in the terms of the trust, the law of the

jurisdiction having the most significant relationship to the matter at issue”).

Because it is often unclear which state’s laws apply, the parties cannot be

assured of the reach of their home state’s provisions on the enforceability of

collaborative law participation agreements and confidentiality protections.

A Uniform Collaborative Law Act will help bring order and understanding

of the collaborative law process across state lines and encourage the growth and

development of collaborative law in a number of ways. It will ensure that

collaborative law participation agreements entered into in one state are

enforceable in another state if one of the parties moves or relocates. Enactment

of the Uniform Collaborative Law Act will also ensure more predictable results

if a communication made in collaborative law in one state is sought in litigation

or other legal processes in another state. Parties to the collaborative law process

cannot always know where the later litigation may occur. Without uniformity,

there can be no firm assurance in any state that a privilege for communications

during the collaborative law process will be recognized. Uniformity will add

certainty on these issues, and thus will encourage better-informed party self-

determination about whether to participate in collaborative law.

2009] UNIFORM COLLABORATIVE LAW ACT 467

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.

(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.

468 HOFSTRA LAW REVIEW [Vol. 38:421

(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

“Collaborative law process” and “collaborative law participation

agreement.” A collaborative law process is created by written contract, a

collaborative law participation agreement. It requires parties to engage

collaborative lawyers. The minimum requirements for collaborative law

participation agreements are specified in section 4.

“Collaborative law communication.” Section 17 creates an evidentiary

privilege for collaborative law communications, a term defined here.

The definition of “collaborative law communication” parallels the

definition of “mediation communication” in the Uniform Mediation Act section

2(2). Collaborative law communications are statements that are made orally,

through conduct, or in writing or other recorded activity. This definition is

similar to the general rule, as reflected in Federal Rule of Evidence 801(a),

which defines a “statement” as “an oral or written assertion or nonverbal

conduct of a person, if it is intended by the person as an assertion.”

Understandable confusion has sometimes resulted because the terms “oral”

and “verbal” are both used in section 2(1) and some think the terms are

synonymous. They are not. “Oral” can be defined as “[u]ttered by the mouth or

in words; spoken, not written.” B

LACK’S LAW DICTIONARY 1095 (6th ed. 1990).

Although commonly used interchangeably with “oral,” “verbal” is defined

strictly as “of or pertaining to words; expressed in words, whether spoken or

written.” Id. at 1558. “Thus, ‘verbal’ is a broader term, and it is possible for

something to be verbal but not oral.” Gary M. McLaughlin, Note, Oral

Contracts in the Entertainment Industry,

1 VA. SPORTS & ENT. L.J. 101, 102 n.6

(2001); see also Lynn E. MacBeth, Lessons In Legalese: Words Commonly

Misused by Lawyer . . . or, Sounds Like, L

AW. J., May 2002, at 6

(“Unfortunately, the word verbal has been so misused that . . . it has come to

mean ‘oral.’ However, in standard English verbal means ‘consisting of words,’

as opposed to nonverbal, which is communication by signs, symbols, and means

2009] UNIFORM COLLABORATIVE LAW ACT 469

other than words. . . . The correct adjective for a spoken communication is oral,

or if you want to sound more erudite, parol. Verbal communication

encompasses both written and spoken communication that consists of words.”).

Most generic mediation privileges cover communications but do not cover

conduct that is not intended as an assertion. A

RK. CODE ANN. § 16-7-206

(1999); CAL. EVID. CODE § 1119 (West 2009); IOWA CODE ANN. §§ 679C.102,

679C.104 (West Supp. 2009); KAN. STAT. ANN. § 60-452a (2008) (assertive

representations); M

ASS. GEN. LAWS ANN. ch. 233, § 23C (1986); MONT. CODE

ANN. § 26-1-813 (2009); NEB. REV. STAT. § 25-2914 (LexisNexis 2004); NEV.

REV. STAT. ANN. § 48.109 (West 2004); N.J. STAT. ANN. § 2A:23A-9 (West

2000); O

HIO REV. CODE ANN. § 2317.023 (West 2004); OKLA. STAT. ANN. tit.

12, § 1805 (West 1993); O

R. REV. STAT. ANN. § 36.220 (West 2003); 42 PA.

CONS. STAT. ANN. § 5949 (West 2000); R.I. GEN. LAWS § 9-19-44 (1997); S.D.

CODIFIED LAWS § 19-13-32 (2004); VA. CODE ANN. § 8.01-576.10 (2007);

ASH. REV. CODE ANN. § 5.60.070 (West 2009); WIS. STAT. ANN. § 904.085

(West 2000); W

YO. STAT. ANN. § 1-43-102 (2009). The same is true of the

privilege created by this act.

The mere fact that a person attended a collaborative law session—in other

words, the physical presence of a person—is not a communication. By contrast,

nonverbal conduct such as nodding in response to a question would be a

“communication” because it is meant as an assertion; however nonverbal

conduct such as smoking a cigarette during the collaborative law session

typically would not be a “communication” because it was not meant by the actor

as an assertion.

Mental impressions that are based even in part on collaborative law

communications would generally be protected by privilege. More specifically,

communications include both statements and conduct meant to inform, because

the purpose of the privilege is to promote candid collaborative law

communications. But see United States v. Robinson, 121 F.3d 971, 975 (5th Cir.

1997) (finding that ordinarily the act of giving a document to an attorney will

not be privileged). By analogy to the attorney-client privilege, silence in

response to a question may be a communication, if it is meant to inform. But see

United States v. White, 950 F.2d 426, 430 & n.2 (7th Cir. 1991) (noting the

distinction between communication and lack of communication). Further,

conduct meant to explain or communicate a fact, such as the re-enactment of an

accident, is a communication. See J

ACK B. WEINSTEIN & MARGARET A.

BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 503.14[3][a] (Joseph M.

McLaughlin ed., 2d ed. 1997). Similarly, a client’s revelation of a hidden scar to

an attorney in response to a question is a communication if meant to inform. In

contrast, a purely physical phenomenon, such as a tattoo or the color of a suit of

clothes, observable by all, is not a communication.

If evidence of mental impressions would reveal, even indirectly,

collaborative law communications, then that evidence would be blocked by the

privilege. See Gunther v. United States, 230 F.2d 222, 223-24 (D.C. Cir. 1956).

For example, a party’s mental impressions of the capacity of another party to

enter into a binding settlement agreement would be privileged if that impression

was in part based on the statements that the party made during the collaborative

470 HOFSTRA LAW REVIEW [Vol. 38:421

law process, because the testimony might reveal the content or character of the

collaborative law communications upon which the impression is based. In

contrast, the mental impression would not be privileged if it was based

exclusively on the party’s observation of that party wearing heavy clothes and

an overcoat on a hot summer day because the choice of clothing was not meant

to inform. See, e.g., Darrow v. Gunn, 594 F.2d 767, 774 (9th Cir. 1979)

(discussing California law which states that observations and impressions of

clients are not privileged).

The definition of “collaborative law communication” has a fixed time

element―it only includes communications that occur between the time a

collaborative law participation agreement is signed and before a collaborative

law process is concluded. The methods and requirements for beginning and

concluding a collaborative law process are specified in Section 5. The defined

time period and methods for ascertaining are designed to make it easier for

tribunals to determine the applicability of the privilege to a proposed

collaborative law communication.

The definition of collaborative law communication does include some

communications that are not made during actual negotiation sessions, such as

those made for purposes of convening or continuing a negotiation session after a

collaborative law process begins. It also includes “briefs” and other reports that

are prepared by the parties for the collaborative law process.

Whether a document is prepared for a collaborative law process is a crucial

issue in determining whether it is a “collaborative law communication.” For

example, a tax return brought to a collaborative law negotiation session for a

divorce settlement would not be a “collaborative law communication,” even

though it may have been used extensively in the process, because it was not

created for “purposes of conducting, participating in, continuing, or reconvening

a collaborative law process,” but rather because it is a requirement of federal

law. However, a note written on the tax return to clarify a point for other

participants during a negotiation session would be a collaborative law

communication. Similarly, a memorandum specifically prepared for the

collaborative law process by a party or a party’s counsel explaining the rationale

behind certain positions taken on the tax return would be a collaborative law

communication. Documents prepared for a collaborative law process by experts

retained by the parties would also be covered by this definition.

“Collaborative lawyer.” A collaborative lawyer represents a party in a

collaborative law process. As discussed in the Preface, a party must be

represented by a lawyer to participate in a collaborative law process; it is not an

option for the self-represented. Section 4(a)(5) requires that a collaborative law

participation agreement identify the collaborative lawyer who represents each

party and Section 4(a)(6) requires that the agreement contain a statement by the

designated lawyer confirming the representation.

“Collaborative matter.” The act uses the term “matter” rather the narrower

term “dispute” to describe what the parties may attempt to resolve through a

collaborative law process. Matter can include some or all of the issues in

2009] UNIFORM COLLABORATIVE LAW ACT 471

litigation or potential litigation, or can include issues between the parties that

have not or may never ripen into litigation. The broader term emphasizes that

parties have great autonomy to decide what to submit to a collaborative law

process and encourages them to use the process creatively and broadly.

The parties must, however, describe the matter that they seek to resolve

through a collaborative law process in their collaborative law participation

agreement. See infra § 4(a)(4). That requirement is essential to determining the

scope of the disqualification requirement for collaborative lawyers under section

9, which is applicable to the collaborative matter and matters “related to the

collaborative matter,” and the application of the evidentiary privilege under

section 17.

“Law firm.” This definition of “law firm” is adapted from the definition of the

term in the ABA Model Rules of Professional Conduct Rule 1.0(c). It includes

lawyers representing governmental entities whether employed by the

government or by a private law firm. It is included to help define the scope of

the imputed disqualification requirement of Section 9.

“Nonparty participant.” This definition parallels the definition of “nonparty

participant” in the Uniform Mediation Act section 2(4). It covers experts,

friends, support persons, potential parties, and others who participate in the

collaborative law process. Nonparty participants are entitled to assert a privilege

before a tribunal for their own collaborative law communications under Section

17(b)(2). This provision is designed to encourage mental health and financial

professionals to participate in a collaborative law process without fear of

becoming embroiled in litigation without their consent should the process

terminate.

Nonparty participant does not, however, include a collaborative lawyer for

a party. The attorney-client privilege is applicable to communications between a

collaborative lawyer and the party whom he or she represents. The collaborative

attorney thus has the obligation placed upon all lawyers to maintain client

confidences and assert evidentiary privilege for client communications. The

obligations of professional responsibility for a lawyer are not altered by the

lawyer’s representation of a party in collaborative law. See infra § 13. Under the

Model Rules of Professional Conduct the attorney-client privilege is held by the

client and can only be waived by the client, even over the attorney’s objection.

See M

ODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2002) (“A lawyer shall not

reveal information relating to the representation of a client unless the client

gives informed consent . . . . ” (emphasis added)); see also Hunt v. Blackburn,

128 U.S. 464, 470 (1888) (“[T]he [attorney-client] privilege is that of the client

alone, and no rule prohibits the latter from divulging his own secrets; and if the

client has voluntarily waived the privilege, it cannot be insisted on to close the

mouth of the attorney”). An attorney does not have the right to override a

client’s decision to waive privilege, and including collaborative lawyers in the

category of nonparty participants entitled to independently assert privilege

might be thought of as changing that traditional view. See, e.g., Comm’r v.

472 HOFSTRA LAW REVIEW [Vol. 38:421

Banks, 543 U.S. 426, 436 (2005) (“The attorney is an agent who is dutybound

to act only in the interests of the principal”); see also M

ODEL RULES OF PROF’L

CONDUCT R. 1.2(a) (2009) (“[A] lawyer shall abide by a client’s decisions

concerning the objectives of representation”); R

ESTATEMENT (SECOND) OF

AGENCY § 1(3) cmt. e (1958) (stating that an attorney is an agent authorized to

act under the control of another). A collaborative lawyer thus does not have any

additional right to independently assert privilege because of the lawyer’s

participation in the collaborative law process as a “nonparty.”

A few states declare ADR neutrals incompetent to testify about

communications in the ADR processes. The declaration of incompetence to

testify normally does not apply to lawyers representing clients, but is limited to

third party neutrals, such as mediators and arbitrators. See C

AL. EVID. CODE

§ 703.5 (West 1995 & Supp. 2009) In Minnesota, the competency standard has

been extended to lawyers participating in mediation as well. See M

INN. GEN. R.

PRAC. ANN. §§ 114.08, 595.02(1)(b) (West 2000).

“Party.” The act’s definition of “party” is central to determining who has rights

and obligations under the act, especially the right to assert the evidentiary

privilege for collaborative law communications. Fortunately, parties to a

collaborative law process are relatively easy to identify—they are signatories to

a collaborative law participation agreement and they engage designated

collaborative lawyers.

Participants in a collaborative law process who do not meet the definition

of “party,” such as an expert retained jointly by the parties to provide input, do

not have the substantial rights under additional sections that are provided to

parties. Rather, these nonparty participants are granted a more limited

evidentiary privilege under section 17(b)(2)—they can prevent disclosure of

their own collaborative law communications but not those of parties or others

who participate in the process. Parties seeking to apply broader restrictions on

disclosures by such nonparty participants should consider drafting such a

confidentiality obligation into a valid and binding agreement that the nonparty

participant signs as a condition of participation in the collaborative law process.

“Person.” Section 2(9) adopts the standard language recommended by the

Uniform Law Commission for the drafting of statutory language, and the term

should be interpreted in a manner consistent with that usage.

“Proceeding.” The definition of “proceeding” is drawn from section 2(7) of the

Uniform Mediation Act. See U

NIF. MEDIATION ACT § 2(7), 7A U.L.A. 105-06

(2006). Its purpose is to define the adjudicative type proceedings to which the

act applies, and should be read broadly to effectuate the intent of the act. It was

added to allow the drafters to delete repetitive language throughout the act, such

as “judicial, administrative, arbitral, or other adjudicative processes, including

related pre-hearing and post-hearing motions, conferences, and discovery;

or . . . a legislative hearing or similar process.” Id.

2009] UNIFORM COLLABORATIVE LAW ACT 473

“Prospective party.” The definition of “prospective party” is drawn from the

ABA Model Rules of Professional Conduct Rule 1.18(a) which defines a

lawyer’s duty to a prospective client. The act uses the term “party” rather than

“client” to clarify that it does not change the standards of professional

responsibility applicable to lawyers. The collaborative lawyer’s obligations to

prospective parties are described in sections 14 and 15.

“Related to a collaborative matter.” Under section 9, a collaborative lawyer

and lawyers in a law firm with which the collaborative law is associated are

disqualified from representing parties in court in a matter “related to a

collaborative matter” when a collaborative law process concludes. The

definition of “related to a collaborative matter” thus determines the scope of the

disqualification provision. The rationale and application of the definition of

“related to a collaborative matter” is discussed in detail in the Prefatory Note.

See supra pp. 451-52.

“Sign.” The definitions of “record” and “sign” adopt standard language

approved by the Uniform Law Commission intended to conform Uniform Acts

with the Uniform Electronic Transactions Act (UETA) and its federal

counterpart, Electronic Signatures in Global and National Commerce Act (E-

Sign). Electronic Signatures in Global and National Commerce Act, Pub. L. No.

106-229, 114 Stat. 464 (2000) (codified as amended at 15 U.S.C. §§ 7001-7002

(2006)); U

NIF. ELEC. TRANSACTION ACT § 2 (1999), available at

http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ueta99.pdf. Both UETA

and E-Sign were written in response to broad recognition of the commercial and

other uses of electronic technologies for communications and contracting, and

the consensus that the choice of medium should not control the enforceability of

transactions. U

NIF. ELEC. TRANSACTION ACT, Prefatory Note (1999); DEP’T OF

COMMERCE & FED. TRADE COMM’N, ELECTRONIC SIGNATURES IN GLOBAL AND

NATIONAL COMMERCE ACT: THE CONSUMER CONSENT PROVISION IN SECTION

101(s)(1)(c)(ii), at i (2001). These sections are consistent with both UETA and

E-Sign. UETA has been adopted by the Commission and received the approval

of the ABA House of Delegates. See generally U

NIF. ELEC. TRANSACTION ACT

(1999); RICHARD L. FIELD, AM. BAR ASS’N SECTION OF SCI. & TECH. LAW &

MICHAEL H. BYOWITZ, AM. BAR ASS’N SECTION OF INT’L LAW,

RECOMMENDATION 303, at 6 (2006), available at

http://www.abanet.org/intlaw/policy/investment/unelectroniccomm0806.pdf;

The Unif. Law Comm’rs, The National Conference of Commissioners on

Uniform State Laws, A Few Facts About the Uniform Electronic Transactions

Act, http://nccusl.org/Update/uniformact_factsheets/uniformacts-fs-ueta.asp

(last visited May 25, 2010). As of December 2001, it had been enacted in more

than 35 states. The National Conference of State Legislatures, Uniform

Electronic Transactions Act, http://www.ncsl.org/default.aspx?tabid=13484

(last visited May 25, 2010).

The practical effect of these definitions is to make clear that electronic

signatures and documents have the same authority as written ones for such

purposes as establishing the validity of a collaborative law participation

474 HOFSTRA LAW REVIEW [Vol. 38:421

agreement under section 4, notice to terminate the collaborative law process

under section 5(d)(1), party agreements concerning the confidentiality of

collaborative law communications under section 16, and party waiver of the

collaborative law communication privilege under section 19(f).

“Tribunal.” The definition of “tribunal” is adapted from Rule 1.0(m) of the

ABA Model Rules of Professional Conduct. It is included to insure the

provisions of this act are applicable in judicial and other forums such as

arbitration and is consistent with the broad definition of “proceeding” in

subsection 10.

SECTION 3. APPLICABILITY.

This [act] applies to a collaborative

law participation agreement that meets the requirements of section 4 signed [on

or] after [the effective date of this [act].

Comment

Section 3 defines the scope of the act and limits its applicability to

collaborative law participation agreements that meet the requirements of

section 4. While parties are free to collaborate in any other way they choose, if

parties want the benefits and protections of this act they must meet its

requirements, subject to the “savings” provisions of section 20.

Section 3 also sets an effective date for the act so that the parties can decide

when to “opt in” to its provisions. It precludes application of the act to

collaborative law participation agreements before the effective date on the

assumption that most of those making these agreements did not take into

account the changes in law. The evidentiary privilege created by the act in

section 17, for example, does not apply retroactively to agreements made before

the act’s effective date. If parties to these collaborative law participation

agreements seek to be covered by the act, they can sign a new agreement on or

after the effective date of the act or amend an existing agreement to conform to

the act’s requirements.

SECTION 4. COLLABORATIVE LAW PARTICIPATION

AGREEMENT; REQUIREMENTS.

(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];

(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].

2009] UNIFORM COLLABORATIVE LAW ACT 475

Comment

Subsection (a) sets minimum conditions for the validity of collaborative

law participation agreements. They are designed to insure that a written record

evidences the parties’ agreement and intent to participate in a collaborative law

process under the act. They were formulated to require collaborative law

participation agreements to be fundamentally fair, but simple, and thus to make

collaborative law more accessible to potential parties with matters in a wide

variety of areas.

To qualify as a collaborative law participation agreement, the parties must

explicitly state their intention to proceed “under this act.” The participation

agreement must thus specifically reference this act to make its provisions such

as the evidentiary privilege for collaborative law communications applicable.

This requirement is designed to help insure that parties make a deliberate

decision to “opt into” in a collaborative law process rather than participate by

inadvertence. It is also designed to differentiate a collaborative law process

under this act from other types of cooperative or collaborative behavior or

dispute resolution involving parties and lawyers.

The requirements of subsection (a) are also designed to help tribunals and

parties more easily administer and interpret the disqualification and evidentiary

privileges provisions of the act. It is, for example, difficult to determine the

scope of the disqualification requirement unless the parties describe the matter

submitted to collaborative law in their participation agreement and designate

collaborative lawyers.

The requirements of subsection (a) are subject to the provisions of

section 20 which give a tribunal discretion to find that, despite flaws in their

written participation agreement, parties reasonably believed they were

participating in a collaborative law process and thus to apply the provisions of

the act “in the interests of justice.”

Many collaborative law participation agreements are far more detailed than

the minimum form requirements that subsection (a) contemplates and contain

numerous additional provisions. In the interest of encouraging further

continuing growth and development of collaborative law, subsection (b)

authorizes additional provisions to be included in participation agreements if

they are not inconsistent with the act.

Subsection (b), however, does not give unlimited discretion to add

provisions to a collaborative law participation agreement. They cannot modify

the defining characteristics of the collaborative law process or agree to waive

the act’s protections for prospective parties. Parties thus cannot waive a party’s

right to terminate collaborative law with or without cause, for any reason at any

time during the process set forth in section 5, the disqualification requirements

of sections 9, 10, and 11, the informed consent requirements of section 14, or

the prospective collaborative lawyer’s duty to inquire into a history of coercive

and violent relationships between parties required by section 15. This provision

of the act should thus be interpreted as analogous to those which set minimum

provisions for valid arbitration agreements, which also cannot be waived. See

476 HOFSTRA LAW REVIEW [Vol. 38:421

UNIF. ARBITRATION ACT § 4(b) (2000) (identifying provisions that parties

cannot waive in a pre-dispute arbitration clause such as the right to counsel).

Parties are, however, free to supplement the required provisions under the

act with additional terms that meet their particular needs and circumstances that

are not inconsistent with the fundamental nature of the collaborative law

process. For example, they may define the scope of voluntary disclosure under

section 12. They may provide for broader protection for the confidentiality of

collaborative law communications than the privilege against disclosure in legal

proceedings provided in section 16. See supra § 4(b). They may provide, as do

many models of collaborative law practice, for the engagement of jointly

retained neutral experts to participate in collaborative law and prohibit parties

from retaining their own experts. They may provide that experts retained for the

purpose of consulting with parties during the collaborative law process may

testify at trial if the collaborative law process concludes. They may provide that

if the collaborative law process terminates, litigation may not be instituted for a

short, set period of time, a common provision in collaborative law participation

agreements. They may agree to toll applicable statutes of limitations during the

collaborative law process or include choice-of-law clauses in their participation

agreements. See, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S.

52, 63-64 (1995) (holding that “the choice-of-law provision covers the rights

and duties of the parties, while the arbitration clause covers arbitration; neither

sentence intrudes upon the other”); Homa v. Am. Express Co., 558 F.3d 225,

227 (3d Cir. 2009) (stating that New Jersey courts will uphold choice-of-law

provisions so long as they do not violate public policy); Badger v. Boulevard

Bancorp, Inc., 970 F.2d 410, 410-11 (7th Cir. 1992) (enforcing an agreement

tolling the statute of limitations); SEC v. DiBella, 409 F. Supp. 2d 122, 129 (D.

Conn. 2006) (finding the Tolling Agreement of the statute of limitations valid

and binding); DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex. 1990)

(stating that judicial respect for the parties’ choice of law advances the policy

party autonomy).

Appropriate bar groups should be encouraged to develop form collaborative

law participation agreements for use by lawyers and parties that comply with

the requirements of this act. See Fawzy v. Fawzy, 973 A.2d 347, 363 (N.J.

2009) (making a similar suggestion for arbitration agreements in family law).

SECTION 5. BEGINNING AND CONCLUDING A

COLLABORATIVE LAW PROCESS.

(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.

(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

2009] UNIFORM COLLABORATIVE LAW ACT 477

(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 (g), 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

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.

Comment

Section 5 protects a party’s right to terminate participation in a

collaborative law process at any time, with or without reason or cause for any or

for no reason. Subsection (b) emphasizes the voluntary nature of participation in

a collaborative law process by prohibiting tribunals from ordering a person to

participate in a collaborative law process over that person’s objection.

478 HOFSTRA LAW REVIEW [Vol. 38:421

Section 5 is also designed to make it as administratively easy for parties

and tribunals as possible to determine when a collaborative law process begins

and ends. To the extent feasible, it links those events to signed records

communicated between the parties and collaborative lawyers or events that are

documented in the record of a tribunal. Establishing the beginning and end of a

collaborative law process is particularly important for application of the

evidentiary privilege for collaborative law communications recognized by

section 17 which applies only to communications in that period.

The evidentiary privilege for collaborative law communications ends when

the collaborative law process concludes. The act specifies two methods of

concluding a collaborative law process: (1) agreement for resolution of all or

part of a matter in a signed record (assuming that the parties do not agree to

continue the collaborative law process to resolve the remaining issues); and (2)

termination of the process. A party can terminate the process in several ways,

including sending notice in a record of termination and by taking acts that are

inconsistent with the continuation of collaborative law, such as commencing or

recommencing an action in court. Withdrawal or discharge of a collaborative

lawyer also terminates the process, and triggers an obligation to give notice on

the former collaborative lawyer. See supra § 5(e).

Section 5(g) allows for continuation of a collaborative law process even if a

party and a collaborative lawyer terminate their lawyer-client relationship, if a

successor collaborative lawyer is engaged in a defined period of time and under

conditions and with documentation which indicate that the parties want the

collaborative law process to continue.

Section 5(h) allows the parties to agree to present an agreement resulting

from a collaborative law process to a tribunal for approval under section 8

without terminating the process. Read together, these sections allow, for

example, collaborative lawyers in divorce proceedings to present uncontested

settlement agreements to the court for approval and incorporation into a court

order as local practice dictates. The collaborative law process—and the

evidentiary privilege for collaborative law communications—is not terminated

by presentation of the settlement agreement to the court.

SECTION 6. PROCEEDINGS PENDING BEFORE TRIBUNAL;

STATUS REPORT.

(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.

require parties and collaborative lawyers to provide a status report on the

collaborative law process and the proceeding. A status report may include only

2009] UNIFORM COLLABORATIVE LAW ACT 479

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.

Comment

This section authorizes parties to enter into a collaborative law participation

agreement to attempt to resolve matters in pending proceedings, a subject

discussed in the Prefatory Note. See supra pp. 450-51. To give the collaborative

law process time and breathing space to operate, it creates a stay of proceedings

from the time the tribunal receives written notice that the parties have executed

a collaborative law participation agreement until it receives written notice that

the collaborative law process is concluded. The stay of proceedings is qualified

by section 7, which authorizes a tribunal to issue emergency orders

notwithstanding the stay, and section 8, which authorizes a tribunal to approve

an agreement resulting from a collaborative law process.

This section is based on court rules and statutes recognizing collaborative

law in a number of jurisdictions. See C

AL. FAM. CODE § 2013 (West Supp.

2009); N.C. GEN. STAT. §§ 50-70 to -79 (2007); TEX. FAM. CODE ANN.

§ 153.0072 (Vernon 2008); T

EX. FAM. CODE ANN. § 6.603 (Vernon 2006); CAL.

CONTRA COSTA SUPER. CT. LOCAL R. 12.5; CAL. L.A. SUPER. CT. LOCAL

R. 14.26; CAL. S.F. SUPER. CT. LOCAL R. 11.17; CAL. SONOMA SUPER. CT.

LOCAL R. 9.26; LA. DIST. CT. R. 39.0; MINN. GEN. R. PRAC. 111.05 (2008);

MINN. GEN. R. PRAC. 304.05 (2008); UTAH R. JUD. ADMIN. 4-510(1)(D) (2009);

In re Domestic Relations—Collaborative Conflict Resolution in Dissolution of

Marriage Cases, Fla. Admin. Order No. 07-20-B (Fla. Cir. Ct. June 25, 2007)

(authorizing the collaborative conflict alternative resolution model in Brevard

County, Florida).

Section 6(c) authorizes a tribunal to ask for status reports on the

collaborative law process in pending proceedings while the stay created by the

notice of collaborative law is in effect. It also put limitations on the scope of the

information that can be requested by the status report. The provisions of these

sections are based on section 7 of the Uniform Mediation Act, adapted for

collaborative law. See U

NIF. MEDIATION ACT § 7, 7A U.L.A. 135-36 (2006).

Subsections 6(c) and (d) recognize that the tribunal asking for the status report

may rule on the matter being negotiated in the collaborative law process and

should not be influenced by the behavior of the parties or counsel therein. Its

provisions would not permit the tribunal to ask in a status report whether a

particular party engaged in “good faith” negotiation, or to state whether a party

had been “the problem” in reaching a settlement. See Lande, Using Dispute

System Design Methods, supra, at 104 & n.185. The status report only can ask

480 HOFSTRA LAW REVIEW [Vol. 38:421

for non-substantive information related to scheduling and whether the

collaborative law process is ongoing.

Some jurisdictions use statistical analysis of the timeliness of case

dispositions to evaluate judicial performance, and sometimes those statistics are

made available to the public. See C

OLO. REV. STAT. ANN. §§ 13-5.5-103, -105

(West Supp. 2009); UTAH R. JUD. ADMIN. 3-111.01 to -111.02 (2009); Colorado

Office of Judicial Performance Evaluation, Commissions on Judicial

Performance, http://www.cojudicialperformance.com/index.cfm (last visited

May 25, 2010). Judicial administrators are encouraged to recognize that while

cases in which a collaborative law participation agreement is signed are

technically “pending,” they should not be considered under active judicial

management for statistical or evaluation purposes until the collaborative law

process is terminated.

SECTION 7. 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]].

Comment

The collaborative law process terminates if a party seeks an emergency

order of the kind authorized by this section. Section 5(c)(2) ends the stay of

proceedings created by section 6(a). Parties may, however, fail to provide notice

of the termination of a collaborative law process to each other and the tribunal.

Additionally, an emergency order might be sought in a new proceeding after a

collaborative law process terminates.

To avoid any possible confusion, this section authorizes tribunals to issue

emergency orders despite the execution of a collaborative law participation

agreement or a stay of proceedings under section 6(a). A collaborative lawyer is

also authorized to seek or defend an application for an emergency order despite

the termination of the collaborative law process under the time limited terms

and conditions of section 9(c)(2).

Section 7 is thus one of the act’s provisions addressing the safety needs of

victims of coercion and violence in collaborative law. It is based on the concern

that a party in a collaborative law process may be a victim of such violence or

coercion or a dependent of a party such as a child may be threatened with abuse

or abduction while a collaborative law process is ongoing. A party should not be

left without access to a tribunal during such an emergency.

The reach of this section is not limited to victims of coercion and violence

themselves. It extends to members of their families and households. Each state

is free to define the scope of this section by cross referencing its civil protection

order statute. Compare C

AL. FAM. CODE § 6211 (West 2004) (defining family

or household member to include current and former spouses, cohabitants, and

persons in a dating relationship, as well as persons with a child in common, or

any other person related by blood or marriage), with W

ASH. REV. CODE ANN.

§ 26.50.010 (West 2005) (including in the definition of “[f]amily or household

members,” current and former spouses, domestic partners and cohabitants,

2009] UNIFORM COLLABORATIVE LAW ACT 481

persons with a child in common, persons in a current or former dating

relationship, and persons related by blood or marriage), and S.C.

CODE ANN.

§ 20-4-20(b) (1986 & Supp. 2008) (defining family or household member to

mean current or former spouses, persons with a child in common, or a male and

female who are or were cohabiting).

The reach of this section is also not limited to emergencies involving

threats to physical safety. The term “interest” encompasses financial interest or

reputational interest as well. This section, in effect, authorizes a tribunal

otherwise authorized to do so to issue emergency provisional relief to protect a

party in any critical area as it would in any civil dispute. A party who finds out

that another party is secretly looting assets from a business, for example, while

participating in a collaborative law process can seek an emergency restraining

order under this section and the court is authorized to grant it despite the stay of

proceedings under section 6(b).

SECTION 8. APPROVAL OF AGREEMENT BY TRIBUNAL.

A tribunal may approve an agreement resulting from a collaborative law

process.

Legislative Note: In states where judicial procedures for management

of proceedings may be prescribed only by court rule or administrative

guideline and not by legislative act, the duties of courts and other

tribunals listed in sections 6 through 8 should be adopted by the

appropriate measure.

Comment

Section 5(h) authorizes parties who reach agreements to present them to a

tribunal for approval without terminating a collaborative law process. This

section authorizes the tribunal to review and approve the agreement of the

parties if required by law, as in, for example, many divorce settlements,

settlements of infants’ estates, or class action settlements. See U

NIF. MARRIAGE

& DIVORCE ACT § 306(d), 9A U.L.A. 248-49 (1998) (noting that the parties’

agreement may be incorporated into the divorce decree if the court finds that it

is “not unconscionable” regarding the property and maintenance and “not

unsatisfactory” regarding support); F

ED. R. CIV. P. 23(e)(2) (discussing the

standard for judicial evaluation of settlement of a class action, which is that the

settlement must not be a result of fraud or collusion and that the settlement must

be fair, adequate, and reasonable); Mnookin, supra, at 1015-16.

SECTION 9. DISQUALIFICATION OF COLLABORATIVE

LAWYER AND LAWYERS IN ASSOCIATED LAW FIRM.

(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, a

lawyer in a law firm with which the collaborative lawyer is associated is

482 HOFSTRA LAW REVIEW [Vol. 38:421

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).

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.

Comment

The disqualification requirement for collaborative lawyers after

collaborative law concludes is a fundamental defining characteristic of

collaborative law. As previously discussed in the Prefatory Note, this section

extends the disqualification provision to “matters related to the collaborative

matter” in addition to the matter described in the collaborative law participation

agreement. See supra pp. 451-52. It also extends the disqualification provision

to lawyers in a law firm with which the collaborative lawyer is associated in

addition to the collaborative lawyer him or herself, so called “imputed

disqualification.” See supra p. 452. Appropriate exceptions to the

disqualification requirement are made for representation to seek emergency

orders for a limited time (see section 7) and to allow collaborative lawyers to

present agreements to a tribunal for approval (section 5(f) and 8).

SECTION 10. LOW-INCOME PARTIES.

(a) The disqualification of section 9(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) 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.

2009] UNIFORM COLLABORATIVE LAW ACT 483

Comment

As previously discussed in the Prefatory Note, this section allows parties to

modify the imputed disqualification requirement by advance agreement for

lawyers in a law firm which represents low-income clients without fee. See

supra pp. 452-54.

SECTION 11. GOVERNMENTAL ENTITY AS PARTY.

(a) The disqualification of section 9(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.

Comment

This section allows parties to agree in advance to modify the imputed

disqualification requirement for lawyers in a law firm which represents the

government or its agencies or subdivisions. The rationale for creating this

exception to the imputed disqualification rule is discussed in the Prefatory Note.

See supra p. 454.

SECTION 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.

Comment

Voluntary informal disclosure of information related to a matter is a

defining characteristic of collaborative law. The rationale for this section is

described in the Prefatory Note. See supra pp. 454-57.

SECTION 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

484 HOFSTRA LAW REVIEW [Vol. 38:421

(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.

Comment

The relationship between the act and the standards of professional

responsibility for collaborative lawyers is discussed in the Prefatory Note. See

supra pp. 446-47. In the interests of clarity, this section reaffirms that the act

does not alter the professional responsibility or child abuse and neglect

reporting obligations of all professionals, lawyers and nonlawyers alike, who

participate in a collaborative law process.

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

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).

Comment

The policy behind the act’s requirements for a prospective collaborative

lawyer’s facilitating the informed consent of a party to participate in a

collaborative law process are discussed in the Prefatory Note. See supra

pp. 457-59.

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.

2009] UNIFORM COLLABORATIVE LAW ACT 485

(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.

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.

Comment

The section is a major part of the act’s overall approach to assuring safety

for victims of coercive and violent relationships who are prospective parties or

parties in collaborative law. The subject is discussed extensively in the

Prefatory Note which covers the scope of the lawyer’s duty under this section.

See supra pp. 459-63.

SECTION 16. 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].

Comment

In subsequent sections, the act creates an evidentiary privilege for

collaborative law communications that prevents them from being admitted into

evidence in legal proceedings. As previously discussed in the Prefatory Note,

the drafters believe that a statute is required only to assure that aspect of

confidentiality relating to evidence compelled in judicial and other legal

proceedings. See supra pp. 463-65. This section encourages parties to a

collaborative law process to reach agreement on broader confidentiality matters

such as disclosure of collaborative law communications to third parties between

themselves.

SECTION 17. PRIVILEGE AGAINST DISCLOSURE

FOR COLLABORATIVE LAW COMMUNICATION;

ADMISSIBILITY; DISCOVERY.

(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.

486 HOFSTRA LAW REVIEW [Vol. 38:421

(2) A nonparty participant may refuse to disclose, and may prevent any

other person from disclosing, a collaborative law communication of the

nonparty participant.

discovery does not become inadmissible or protected from discovery solely

because of its disclosure or use in a collaborative law process.

Comment

Overview

Section 17 sets forth the act’s general structure for creating a privilege

prohibiting disclosure of collaborative law communications in legal

proceedings. It is based on similar provisions in the Uniform Mediation Act,

whose commentary should be consulted for more expansive discussion of the

issues raised here.

Holders of the Privilege for Collaborative Law Communications Parties

Parties are holders of the collaborative law communications privilege. The

privilege of the parties draws upon the purpose, rationale, and traditions of the

attorney-client privilege in that its paramount justification is to encourage

candor by the parties, just as encouraging the client’s candor is the central

justification for the attorney-client privilege. Using the attorney-client privilege

as a core base for the collaborative law communications privilege is also

particularly appropriate since the extensive participation of attorneys is a

hallmark of collaborative law.

The analysis for the parties as holders appears quite different at first

examination from traditional communications privileges because collaborative

law involves parties whose interests appear to be adverse, such as marital

partners now seeking a divorce. However, the law of attorney-client privilege

has considerable experience with situations in which multiple-client interests

may conflict, and those experiences support the analogy of the collaborative law

communications privilege to the attorney-client privilege. For example, the

attorney-client privilege has been recognized in the context of a joint defense in

which interests of the clients may conflict in part and yet one may prevent later

disclosure by another. See United States v. McPartlin, 595 F.2d 1321, 1336 (7th

Cir. 1979); Static Control Components, Inc. v. Lexmark Int’l, Inc., 250 F.R.D.

575, 578-79 (D. Colo. 2007); United States v. Pizzonia, 415 F. Supp. 2d 168,

178 (E.D.N.Y. 2006); Raytheon Co. v. Superior Court, 256 Cal. Rptr. 425, 428-

29 (Cal. Ct. App. 1989); Visual Scene, Inc. v. Pilkington Bros., 508 So. 2d 437,

440 (Fla. Dist. Ct. App. 1987); Robert B. Cummings, Get Your Own Lawyer!

An Analysis of In-House Counsel Advising Across the Corporate Structure After

Teleglobe, 21 G

EO. J. LEGAL ETHICS 683, 689-91 (2008). But see Dexia Credit

Local v. Rogan, 231 F.R.D. 268, 273 (N.D. Ill. 2004) (stating that the joint

defense doctrine can be waived if parties become adverse); Gulf Oil Corp. v.

Fuller, 695 S.W.2d 769, 774 (Tex. Ct. App. 1985) (refusing to apply the joint

defense doctrine to parties who were not directly adverse). See generally

Patricia Welles, A Survey of Attorney-Client Privilege in Joint Defense, 35 U.

MIAMI L. REV. 321 (1981) (exploring the logical extensions of the attorney-

2009] UNIFORM COLLABORATIVE LAW ACT 487

client privilege, including the doctrine of joint defense). Similarly, the attorney-

client privilege applies in the insurance context, in which an insurer generally

has the right to control the defense of an action brought against the insured,

when the insurer may be liable for some or all of the liability associated with an

adverse verdict. See, e.g., Med. Protective Co. v. Pang, 606 F. Supp. 2d 1049,

1060 (D. Ariz. 2008); In re Rules of Prof’l Conduct & Insurer Imposed Billing

Rules & Procedures, 2 P.3d 806, 812 (Mont. 2000); Aviva Abramovsky, The

Enterprise Model of Managing Conflicts of Interest in the Tripartite Insurance

Defense Relationship, 27 C

ARDOZO L. REV. 193, 200-01 (2005).

Nonparty Participants Such as Experts

Of particular note is the act’s addition of a privilege for the nonparty

participant, though limited to the communications by that individual in the

collaborative law process. Joint party retention of experts such as mental health

professionals and financial appraisers to perform various functions is a feature

of many models of collaborative law, and this provision encourages and

accommodates it. Extending the privilege to nonparties for their own

communications seeks to facilitate the candid participation of experts and others

who may have information and perspective that would facilitate resolution of

the matter. This provision would also cover statements prepared by such

persons for the collaborative law process and submitted as part of it, such as

experts’ reports. Any party who expects to use such an expert report prepared to

submit in a collaborative law process later in a legal proceeding would have to

secure permission of all parties and the expert in order to do so. This is

consistent with the treatment of reports prepared for a collaborative law process

as collaborative law communications. See supra § 2(1).

As previously discussed in the comments to section 2(7), collaborative

lawyers are not nonparty participants under the act, as they maintain a

traditional attorney-client relationship with parties, which allocates to clients the

right to waive the attorney-client privilege, even over their lawyer’s objection.

See supra p. 472.

Collaborative Law Communications Do Not Shield Otherwise Admissible or

Discoverable Evidence

Section 17(c) concerning evidence otherwise discoverable and admissible

makes clear that relevant evidence may not be shielded from discovery or

admission at trial merely because it is communicated in a collaborative law

process. See C

AL. EVID. CODE §§ 1119-1120 (2009); U.S. Fid. & Guar. Co. v.

Dick Corp./Barton Malow, 215 F.R.D. 503, 506 (W.D. Pa. 2003); Rojas v.

Superior Court, 93 P.3d 260, 266 (Cal. 2004). For purposes of the collaborative

law communication privilege, it is the communication that is made in the

collaborative law process that is protected by the privilege, not the underlying

evidence giving rise to the communication. Evidence that is communicated in

collaborative law is subject to discovery, just as it would be if the collaborative

law process had not taken place. There is no “fruit of the poisonous tree”

doctrine in the collaborative law communication privilege. For example, a party

who learns about a witness during a collaborative law proceeding is not

488 HOFSTRA LAW REVIEW [Vol. 38:421

precluded by the privilege from subpoenaing that witness should collaborative

law terminate and the matter wind up in a courtroom. F

ED. R. EVID. 408(b)

(noting that evidence is not excluded if offered for proving bias, prejudice,

undue delay, or obstruction); Wimsatt v. Superior Court, 61 Cal. Rptr. 3d 200,

214 (Cal. Ct. App. 2007); Feldman v. Kritch, 824 So. 2d 274, 276 (Fla. Dist. Ct.

App. 2002) (citing F

LA. STAT. ANN. § 44.102(3) (West Supp. 2009), and DR

Lakes Inc. v. Brandsmart U.S.A., 819 So. 2d 971, 974 (Fla. Dist. Ct. App. 2002)

(holding that privilege does not bar evidence to correct a mutual mistake in

settlement amount)).

SECTION 18. WAIVER AND PRECLUSION OF PRIVILEGE.

(a) A privilege under section 17 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 17, but this preclusion applies only to the extent

necessary for the person prejudiced to respond to the disclosure or

representation.

SECTION 19. LIMITS OF PRIVILEGE.

(a) There is no privilege under section 17 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 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.

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:

2009] UNIFORM COLLABORATIVE LAW ACT 489

(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 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.

Comment

Unconditional Exceptions to Privilege

The act articulates specific and exclusive exceptions to the broad grant of

privilege provided to collaborative law communications. They are based on

limited but vitally important values such as protection against serious bodily

injury, crime prevention, and the right of someone accused of professional

misconduct to respond that outweigh the importance of confidentiality in the

collaborative law process. The exceptions are similar to those contained in the

Uniform Mediation Act. See generally U

NIF. MEDIATION ACT § 6, 7A U.L.A.

124 (2006).

As with other privileges, when it is necessary to consider evidence in order

to determine if an exception applies, the act contemplates that a court will hold

an in camera proceeding at which the claim for exemption from the privilege

can be confidentially asserted and defended.

Exception to Privilege for Written, But Not Oral, Agreements

Of particular note is the exception that permits evidence of a collaborative

law communication “in an agreement resulting from the collaborative law

process, evidenced by a record signed by all parties to the agreement.” See

supra § 9(a)(4). The exception permits such evidence to be introduced in a

subsequent proceeding convened to determine whether the terms of that

settlement agreement have been breached.

The words “agreement . . . evidenced by a record signed by all parties” in

this exception refer to written and executed agreements, those recorded by tape

recording and ascribed to by the parties on the tape, and other electronic means

to record and sign, as defined in sections 2(12) and 2(14). In other words, a

party’s notes about an oral agreement would not be “an agreement . . . signed by

all parties.” On the other hand, the following situations would be considered a

signed agreement: a handwritten agreement that the parties have signed, an e-

490 HOFSTRA LAW REVIEW [Vol. 38:421

mail exchange between the parties in which they agree to particular provisions,

and a tape recording in which they state what constitutes their agreement.

This exception is noteworthy only for what is not included: oral

agreements. The disadvantage of exempting oral settlements is that nearly

everything said during a collaborative law session could bear on either whether

the parties came to an agreement or the content of the agreement. In other

words, an exception for oral agreements has the potential to swallow the rule of

privilege. As a result, parties might be less candid, not knowing whether a

controversy later would erupt over an oral agreement.

Despite the limitation on oral agreements, the act leaves parties other means

to preserve the agreement quickly. For example, parties can state their oral

agreement into the tape recorder and record their assent. One would also expect

that counsel will incorporate knowledge of a writing requirement into their

collaborative law representation practices.

Case-by-Case Exceptions

The exceptions in section 19(a) apply regardless of the need for the

evidence because society’s interest in the information contained in the

collaborative law communications may be said to categorically outweigh its

interest in the confidentiality of those communications. In contrast, the

exceptions under section 19(b) would apply only in situations where the relative

strengths of society’s interest in a collaborative law communication and a

party’s interest in confidentiality can only be measured under the facts and

circumstances of the particular case. The act places the burden on the proponent

of the evidence to persuade the court in a non-public hearing that the evidence is

not otherwise available, that the need for the evidence substantially outweighs

the confidentiality interests, and that the evidence comes within one of the

exceptions listed under section 19(b). In other words, the exceptions listed in

section 19(b) include situations that should remain confidential but for

overriding concerns for justice.

Limited Preservation of Party Autonomy Regarding Confidentiality

Section 19(f) allows the parties to opt for a non-privileged collaborative law

process or session of the collaborative law process by mutual agreement and

thus furthers the act’s policy of party self-determination. If the parties so agree,

the privilege sections of the act do not apply, thus fulfilling the parties

reasonable expectations regarding the confidentiality of that session. Parties

may use this option if they wish to rely on, and therefore use in evidence,

statements made during the collaborative law process. It is the parties and their

collaborative lawyers who make this choice. Even if the parties do not agree in

advance, they and all nonparty participants can waive the privilege pursuant to

section 18(a).

If the parties want to opt out, they should inform the nonparty participants

of this agreement, because without actual notice, the privileges of the act still

apply to the collaborative law communications of the persons who have not

been so informed until such notice is actually received. Thus, for example, if a

nonparty participant has not received notice that the opt-out has been invoked

2009] UNIFORM COLLABORATIVE LAW ACT 491

and speaks during the collaborative law process, that communication is

privileged under the act. If, however, one of the parties tells the nonparty

participant that the opt-out has been invoked, the privilege no longer attaches to

statements made after the actual notice has been provided, even though the

earlier statements remain privileged because of the lack of notice.

SECTION 20. AUTHORITY OF TRIBUNAL IN CASE OF

NONCOMPLIANCE.

(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.

Comment

The act protects persons from inadvertently or inappropriately entering into

collaborative law participation agreements by establishing protections that

cannot be waived by the parties. Section 4 sets forth minimum standards for a

collaborative law participation agreement. Section 14 sets forth requirements for

a lawyer’s facilitating informed party consent to participate in collaborative law.

Section 15 requires a lawyer to inquire into potential coercive and violent

relationships and take appropriate safety precautions.

Section 20 anticipates, however, that, as collaborative law expands in use

and popularity, claims will be made that agreements reached in collaborative

law should not be enforced, collaborative lawyers should not be disqualified,

and evidentiary privilege should not be recognized because of the failure of

collaborative lawyers to meet these requirements. This section takes the view

that, while parties should not be forced to participate in collaborative law

involuntarily (see section 5(b)), the failures of collaborative lawyers in drafting

agreements and making required disclosures and inquiries should not be visited

on parties whose conduct indicates an intention to participate in collaborative

law.

By analogy to the doctrine established allowing enforcement of arguably

flawed arbitration agreements, this section places the burden of proof on the

party seeking to enforce a collaborative law participation agreement or

agreements resulting from a collaborative law process despite the failures of

form, disclosure, or inquiry. See Fleetwood Enters., Inc. v. Bruno, 784 So. 2d

277, 280 (Ala. 2000) (“The party seeking to compel arbitration has the burden

492 HOFSTRA LAW REVIEW [Vol. 38:421

of proving the existence of a contract calling for arbitration . . . .”); Layton-

Blumenthal, Inc. v. Jack Wasserman Co., 111 N.Y.S.2d 919, 920 (N.Y. App.

Div. 1952) (“The burden is upon a party applying to compel another to arbitrate,

to establish that there was a plain intent by agreement to limit the parties to that

method of deciding disputes.”).

Doubts about the parties’ intentions should be resolved against

enforcement. To invoke its discretion under this section the tribunal must find

that a signed record of some kind—usually a written agreement—indicates that

the parties intended to participate in a collaborative law process. It cannot find

that the parties entered into a collaborative law process solely on the basis of an

oral agreement. The tribunal must also find that, despite the failings of the

participation agreement or the required disclosures, the parties nonetheless

intended to participate in a collaborative law process and reasonably believed

that they were doing so. If the tribunal makes those findings, this section gives it

the discretionary authority to enforce agreements resulting from the process the

parties engaged in and the other provisions of this act if the tribunal also finds

that the interests of justice so require.

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.

Comment

While the drafters recognize that some such variations of collaborative law

are inevitable given its dynamic and diverse nature and early stage of

development, the specific benefits of uniformity of law should also be

emphasized. As discussed in the Prefatory Note, uniform adoption of this act

will make the law governing collaborative law more accessible and certain in

key areas and will thus encourage parties to participate in a collaborative law

process. See supra p. 434. Collaborative lawyers and parties will know the

standards under which collaborative law participation agreements will be

enforceable and courts can reasonably anticipate how the statute will be

interpreted. Moreover, uniformity of the law will provide greater protection of

collaborative law communications than any one state or choice-of-law doctrine

has the capacity to provide. No matter how much protection one state affords

confidentiality of collaborative law communications, for example, the

communication will not be protected against compelled disclosure in another

state if that state does not have the same level of protection.

SECTION 22. RELATION TO ELECTRONIC SIGNATURES

IN GLOBAL AND NATIONAL COMMERCE ACT.

This [act]

modifies, limits, and supersedes the federal E-Sign, 15 U.S.C. § 7001 et seq.

(2006), but does not modify, limit, or supersede section 101(c) of that act, 15

U.S.C. § 7001(c), or authorize electronic delivery of any of the notices

described in § 103(b) of that act, 15 U.S.C. § 7003(b).

2009] UNIFORM COLLABORATIVE LAW ACT 493

[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.]

Legislative Note: Include this section only if the state lacks a general

severability statute or a decision by the highest court of this state

stating a general rule of severability.

SECTION 24. 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.