The Uniform Collaborative Law Act Gretchen M. Walther, Esq. Harry L. Tindall, Esq.

“ The transformation that often occurs in the attorneys capacity to find creative solutions to thorny issues in collaborative practice simply must be experienced to be believed, and the essential key to entering this “creative hyperspace” is the disqualification agreement. Without it, you may have something cordial and reasonably effective in settling cases, but you do not have collaborative law.” Pauline Tesler, Collaborative Law: What It Is and Why Family Law Attorneys Need to Know About It, American Journal of Family Law 1999, Vol.13, , 220.

Uniform Laws – An Explanation Drafted by the Uniform Law Commission Drafted by the Uniform Law Commission NM Commissioners are: NM Commissioners are: Burton, John P. Cervantes, Joseph Desiderio, Robert J. Foy, Sr., Thomas P. Larragoite, Philip P. McSorley, Cisco Sanchez, Raymond G. Tackett, Paula Burton, John P. Cervantes, Joseph Desiderio, Robert J. Foy, Sr., Thomas P. Larragoite, Philip P. McSorley, Cisco Sanchez, Raymond G. Tackett, Paula

Uniform Law Drafting Process Proposal for uniform law is assigned to study committee Proposal for uniform law is assigned to study committee Then drafting committee is appointed Then drafting committee is appointed Academic reporter is selected Academic reporter is selected Observers are invited from a wide area of possible interests Observers are invited from a wide area of possible interests

Drafting Process, Part 2 Drafting meetings held several times Drafting meetings held several times Act is read twice in full at the annual meeting Act is read twice in full at the annual meeting Sent to American Bar Association for endorsement Sent to American Bar Association for endorsement Sent to the states for enactment Sent to the states for enactment

Purpose of UCLA

Uniformity and Standardization -Protection of the consumer Uniformity and Standardization -Protection of the consumer

Purpose of UCLA Uniformity and Standardization -Protection of the consumer Uniformity and Standardization -Protection of the consumer Contractual and Voluntary Contractual and Voluntary

Purpose of UCLA Uniformity and Standardization -Protection of the consumer Uniformity and Standardization -Protection of the consumer Contractual and Voluntary Contractual and Voluntary Court enforcement without separate breach of contract Court enforcement without separate breach of contract

Purpose of UCLA Uniformity and Standardization -Protection of the consumer Uniformity and Standardization -Protection of the consumer Contractual and Voluntary Contractual and Voluntary Court enforcement without separate breach of contract Court enforcement without separate breach of contract Provides minimum terms for collaborative participation agreement Provides minimum terms for collaborative participation agreement

Purpose of UCLA Clarification of when process begins and when it ends Clarification of when process begins and when it ends

Purpose of UCLA Clarification of when process begins and when it ends Clarification of when process begins and when it ends Clarification of how to use the collaborative process when there is an action pending in court Clarification of how to use the collaborative process when there is an action pending in court

Purpose of UCLA Extends the disqualification agreement to matters “substantially related” Extends the disqualification agreement to matters “substantially related”

Purpose of UCLA Extends the disqualification agreement to matters “substantially related” Extends the disqualification agreement to matters “substantially related” Requirement that lawyers disclose benefits and risks so there may be informed consent Requirement that lawyers disclose benefits and risks so there may be informed consent

Purpose of UCLA Extends the disqualification agreement to matters “substantially related” Extends the disqualification agreement to matters “substantially related” Requirement that lawyers disclose benefits and risks so there may be informed consent Requirement that lawyers disclose benefits and risks so there may be informed consent Creates obligation to screen for Domestic Violence Creates obligation to screen for Domestic Violence

Purpose of UCLA The imputed disqualification is relaxed for low income parties The imputed disqualification is relaxed for low income parties

Purpose of UCLA The imputed disqualification is relaxed for low income parties The imputed disqualification is relaxed for low income parties Reasonable expectation for parties and attorneys for confidentiality by creating an evidentiary privilege Reasonable expectation for parties and attorneys for confidentiality by creating an evidentiary privilege

Purpose of UCLA The imputed disqualification is relaxed for low income parties The imputed disqualification is relaxed for low income parties Reasonable expectation for parties and attorneys for confidentiality by creating an evidentiary privilege Reasonable expectation for parties and attorneys for confidentiality by creating an evidentiary privilege Acknowledges that the standards for professional responsibility and child abuse reporting still apply Acknowledges that the standards for professional responsibility and child abuse reporting still apply

Collaborative Law and Professional Responsibility The limited scope of representation provided by collaborative lawyers is consistent with standards of professional responsibility for lawyers The limited scope of representation provided by collaborative lawyers is consistent with standards of professional responsibility for lawyers

Collaborative Law and Professional Responsibility Kentucky Bar Association Kentucky Bar Association

Collaborative Law and Professional Responsibility Kentucky Bar Association Kentucky Bar Association New Jersey Advisory Committee on Professional Ethics New Jersey Advisory Committee on Professional Ethics

Collaborative Law and Professional Responsibility Kentucky Bar Association Kentucky Bar Association New Jersey Advisory Committee on Professional Ethics New Jersey Advisory Committee on Professional Ethics North Carolina State Bar Association North Carolina State Bar Association

Collaborative Law and Professional Responsibility Kentucky Bar Association Kentucky Bar Association New Jersey Advisory Committee on Professional Ethics New Jersey Advisory Committee on Professional Ethics North Carolina State Bar Association North Carolina State Bar Association Pennsylvania Bar Association Pennsylvania Bar Association

Collaborative Law and Professional Responsibility Colorado ??

Collaborative Law and Professional Responsibility Colorado 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

Collaborative Law and Professional Responsibility The American Bar Association Opinion

Collaborative Law and Professional Responsibility The American Bar Association Opinion Specifically rejects the Colorado ethics opinion Specifically rejects the Colorado ethics opinion

Collaborative Law and Professional Responsibility The American Bar Association Opinion Specifically rejects the Colorado ethics opinion Specifically rejects the Colorado ethics opinion Collaborative law is permissible limited scope representation Collaborative law is permissible limited scope representation

Collaborative Law and Professional Responsibility The American Bar Association Opinion Specifically rejects the Colorado ethics opinion Specifically rejects the Colorado ethics opinion Collaborative law is permissible limited scope representation Collaborative law is permissible limited scope representation The disqualification agreement is “not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation” The disqualification agreement is “not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation”

Collaborative Law and Professional Responsibility The American Bar Association Opinion Specifically rejects the Colorado ethics opinion Specifically rejects the Colorado ethics opinion Collaborative law is permissible limited scope representation Collaborative law is permissible limited scope representation The disqualification agreement is “not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation” The disqualification agreement is “not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation” “If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law process.” “If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law process.”

Collaborative Law Communications and Evidentiary Privilege

Protection for confidentiality of communications is central to collaborative law Protection for confidentiality of communications is central to collaborative law

Collaborative Law Communications and Evidentiary Privilege Protection for confidentiality of communications is central to collaborative law Protection for confidentiality of communications is central to collaborative law Encourage frank communication Encourage frank communication

Collaborative Law Communications and Evidentiary Privilege Protection for confidentiality of communications is central to collaborative law Protection for confidentiality of communications is central to collaborative law Encourage frank communication Encourage frank communication Communication by any participant blocked in court Communication by any participant blocked in court

Collaborative Law Communications and Evidentiary Privilege What if collaborative law communications are disclosed to family members, business associates or the general public? What if collaborative law communications are disclosed to family members, business associates or the general public?

Collaborative Law Communications and Evidentiary Privilege What if collaborative law communications are disclosed to family members, business associates or the general public? What if collaborative law communications are disclosed to family members, business associates or the general public? Protections for confidentiality only apply to legal proceedings Protections for confidentiality only apply to legal proceedings

Collaborative Law Communications and Evidentiary Privilege What if collaborative law communications are disclosed to family members, business associates or the general public? What if collaborative law communications are disclosed to family members, business associates or the general public? Protections for confidentiality only apply to legal proceedings…..but….. Protections for confidentiality only apply to legal proceedings…..but…..

Collaborative Law Communications and Evidentiary Privilege Protections for confidentiality only apply to legal proceedings…..but…..

Collaborative Law Communications and Evidentiary Privilege Protections for confidentiality only apply to legal proceedings…..but….. the participation agreements can adress disclosures to the public the participation agreements can adress disclosures to the public

Collaborative Law Communications and Evidentiary Privilege Protections for confidentiality only apply to legal proceedings…..but….. the participation agreements can adress disclosures to the public the participation agreements can adress disclosures to the public ethical standards also apply ethical standards also apply

Collaborative Law Communications and Evidentiary Privilege Protections for confidentiality only apply to legal proceedings…..but….. the participation agreements can adress disclosures to the public the participation agreements can adress disclosures to the public ethical standards also apply ethical standards also apply

Collaborative Law Communications and Evidentiary Privilege Protections for confidentiality only apply to legal proceedings…..but….. the participation agreements can adress disclosures to the public the participation agreements can adress disclosures to the public ethical standards also apply ethical standards also apply

Uniform Collaborative Law Act and Domestic Violence

Domestic victim’s rights organizations believe Collaborative Law is not appropriate because of the inherent power imbalances in domestic violence Domestic victim’s rights organizations believe Collaborative Law is not appropriate because of the inherent power imbalances in domestic violence

Uniform Collaborative Law Act and Domestic Violence Domestic victim’s rights organizations believe Collaborative Law is not appropriate because of the inherent power imbalances in domestic violence Domestic victim’s rights organizations believe Collaborative Law is not appropriate because of the inherent power imbalances in domestic violence The UCLA has mandatory screening requirements The UCLA has mandatory screening requirements

Uniform Collaborative Law Act and Domestic Violence Domestic victim’s rights organizations believe Collaborative Law is not appropriate because of the inherent power imbalances in domestic violence Domestic victim’s rights organizations believe Collaborative Law is not appropriate because of the inherent power imbalances in domestic violence The UCLA has mandatory screening requirements The UCLA has mandatory screening requirements There is an exception to the rule that lawyers cannot appear in court, when there has been an act of domestic violence and a client needs an order of protection There is an exception to the rule that lawyers cannot appear in court, when there has been an act of domestic violence and a client needs an order of protection

The collaborative process is terminated: What should be provided to successor litigation counsel; What should be provided to successor litigation counsel; What can be provided to successor litigation counsel What can be provided to successor litigation counsel

The collaborative process is terminated: Gretchen’s client wants Gretchen to be a consultant to her and to her litigation counsel stating: Gretchen’s client wants Gretchen to be a consultant to her and to her litigation counsel stating: “You won’t have to appear in court…”

Hypothetical: It is a collaborative case It is a collaborative case Gretchen represents husband; Gretchen represents husband; Harry represents wife; Harry represents wife; Gretchen find’s out her client has lied about a material fact of the case Gretchen find’s out her client has lied about a material fact of the case Should she terminate or withdraw? Should she terminate or withdraw?

Hypothetical: Gretchen represents Wife. Gretchen represents Wife. Harry represents Husband. Harry represents Husband. The collaborative process terminates. The collaborative process terminates. The parties mutually agree that they each want Gretchen and Harry to represent them in litigation. The parties mutually agree that they each want Gretchen and Harry to represent them in litigation. Can the collaborative lawyers represent the parties in litigation, if the parties agree to it? Can the collaborative lawyers represent the parties in litigation, if the parties agree to it?