SF 2492

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 11:36pm

A bill for an act
relating to dispute resolution; enacting the Uniform Collaborative Law Act
proposed for adoption by the National Conference of Commissioners on Uniform
State Laws; proposing coding for new law in Minnesota Statutes, chapter 572A.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [572A.10] SHORT TITLE.
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new text begin Sections 572A.10 to 572A.31 may be cited as the "Uniform Collaborative Law Act."
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Sec. 2.

new text begin [572A.11] DEFINITIONS.
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new text begin In sections 572A.11 to 572A.31:
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new text begin (1) "Collaborative law communication" means a statement, whether oral or in a
record, or verbal or nonverbal, that:
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new text begin (A) is made to conduct, participate in, continue, or reconvene a collaborative law
process; and
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new text begin (B) occurs after the parties sign a collaborative law participation agreement and
before the collaborative law process is concluded.
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new text begin (2) "Collaborative law participation agreement" means an agreement by persons to
participate in a collaborative law process.
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new text begin (3) "Collaborative law process" means a procedure intended to resolve a
collaborative matter without intervention by a tribunal in which persons:
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new text begin (A) sign a collaborative law participation agreement; and
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new text begin (B) are represented by collaborative lawyers.
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new text begin (4) "Collaborative lawyer" means a lawyer who represents a party in a collaborative
law process.
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new text begin (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.
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new text begin (6) "Law firm" means:
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new text begin (A) lawyers who practice law together in a partnership, professional corporation,
sole proprietorship, limited liability company, or association; and
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new text begin (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.
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new text begin (7) "Nonparty participant" means a person, other than a party and the party's
collaborative lawyer, that participates in a collaborative law process.
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new text begin (8) "Party" means a person that signs a collaborative law participation agreement
and whose consent is necessary to resolve a collaborative matter.
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new text begin (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.
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new text begin (10) "Proceeding" means:
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new text begin (A) a judicial, administrative, arbitral, or other adjudicative process before a tribunal,
including related prehearing and posthearing motions, conferences, and discovery; or
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new text begin (B) a legislative hearing or similar process.
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new text begin (11) "Prospective party" means a person that discusses with a prospective
collaborative lawyer the possibility of signing a collaborative law participation agreement.
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new text begin (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.
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new text begin (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.
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new text begin (14) "Sign" means, with present intent to authenticate or adopt a record:
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new text begin (A) to execute or adopt a tangible symbol; or
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new text begin (B) to attach to or logically associate with the record an electronic symbol, sound,
or process.
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new text begin (15) "Tribunal" means:
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new text begin (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
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new text begin (B) a legislative body conducting a hearing or similar process.
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Sec. 3.

new text begin [572A.12] APPLICABILITY.
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new text begin Sections 572A.10 to 572A.31 apply to a collaborative law participation agreement
that meets the requirements of section 572A.13 and is signed on or after the effective date
of sections 572A.10 to 572A.31.
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Sec. 4.

new text begin [572A.13] COLLABORATIVE LAW PARTICIPATION AGREEMENT;
REQUIREMENTS.
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new text begin (a) A collaborative law participation agreement must:
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new text begin (1) be in a record;
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new text begin (2) be signed by the parties;
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new text begin (3) state the parties' intention to resolve a collaborative matter through a collaborative
law process under sections 572A.10 to 572A.31;
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new text begin (4) describe the nature and scope of the matter;
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new text begin (5) identify the collaborative lawyer who represents each party in the process; and
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new text begin (6) contain a statement by each collaborative lawyer confirming the lawyer's
representation of a party in the collaborative law process.
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new text begin (b) Parties may agree to include in a collaborative law participation agreement
additional provisions not inconsistent with sections 572A.10 to 572A.31.
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Sec. 5.

new text begin [572A.14] BEGINNING AND CONCLUDING A COLLABORATIVE
LAW PROCESS.
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new text begin (a) A collaborative law process begins when the parties sign a collaborative law
participation agreement.
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new text begin (b) A tribunal may not order a party to participate in a collaborative law process
over that party's objection.
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new text begin (c) A collaborative law process is concluded by a:
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new text begin (1) resolution of a collaborative matter as evidenced by a signed record;
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new text begin (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
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new text begin (3) termination of the process.
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new text begin (d) A collaborative law process terminates:
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new text begin (1) when a party gives notice to other parties in a record that the process is ended; or
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new text begin (2) when a party:
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new text begin (A) begins a proceeding related to a collaborative matter without the agreement of
all parties; or
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new text begin (B) in a pending proceeding related to the matter:
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new text begin (i) initiates a pleading, motion, order to show cause, or request for a conference
with the tribunal;
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new text begin (ii) requests that the proceeding be put on the tribunal's active calendar; or
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new text begin (iii) takes similar action requiring notice to be sent to the parties; or
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new text begin (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.
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new text begin (e) A party's collaborative lawyer shall give prompt notice to all other parties in a
record of a discharge or withdrawal.
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new text begin (f) A party may terminate a collaborative law process with or without cause.
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new text begin (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) is
sent to the parties:
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new text begin (1) the unrepresented party engages a successor collaborative lawyer; and
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new text begin (2) in a signed record:
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new text begin (A) the parties consent to continue the process by reaffirming the collaborative law
participation agreement;
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new text begin (B) the agreement is amended to identify the successor collaborative lawyer; and
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new text begin (C) the successor collaborative lawyer confirms the lawyer's representation of a
party in the collaborative process.
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new text begin (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.
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new text begin (i) A collaborative law participation agreement may provide additional methods of
concluding a collaborative law process.
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Sec. 6.

new text begin [572A.15] PROCEEDINGS PENDING BEFORE TRIBUNAL; STATUS
REPORT.
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new text begin (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 572A.16 and 572A.17, the filing operates as a stay
of the proceeding.
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new text begin (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.
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new text begin (c) A tribunal in which a proceeding is stayed under subsection (a) may require
parties and collaborative lawyers to provide a status report on the collaborative law
process and the proceeding. A status report may include only information on whether the
process is ongoing or concluded. It may not include a report, assessment, evaluation,
recommendation, finding, or other communication regarding a collaborative law process
or collaborative law matter.
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new text begin (d) A tribunal may not consider a communication made in violation of subsection (c).
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new text begin (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.
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Sec. 7.

new text begin [572A.16] EMERGENCY ORDER.
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new text begin During a collaborative law process, a tribunal may issue emergency orders to protect
the health, safety, welfare, or interest of a party or family or household member defined
in section 518B.01.
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Sec. 8.

new text begin [572A.17] APPROVAL OF AGREEMENT BY TRIBUNAL.
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new text begin A tribunal may approve an agreement resulting from a collaborative law process.
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Sec. 9.

new text begin [572A.18] DISQUALIFICATION OF COLLABORATIVE LAWYER
AND LAWYERS IN ASSOCIATED LAW FIRM.
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new text begin (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.
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new text begin (b) Except as otherwise provided in subsection (c) and sections 572A.19 and
572A.20, a lawyer in a law firm with which the collaborative lawyer is associated is
disqualified from appearing before a tribunal to represent a party in a proceeding related to
the collaborative matter if the collaborative lawyer is disqualified from doing so under
subsection (a).
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new text begin (c) A collaborative lawyer or a lawyer in a law firm with which the collaborative
lawyer is associated may represent a party:
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new text begin (1) to ask a tribunal to approve an agreement resulting from the collaborative law
process; or
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new text begin (2) to seek or defend an emergency order to protect the health, safety, welfare,
or interest of a party, or family or household member defined in section 518B.01
if a successor lawyer is not immediately available to represent that person. In that
event, subsections (a) and (b) apply when the party, or 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.
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Sec. 10.

new text begin [572A.19] LOW-INCOME PARTIES.
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new text begin (a) The disqualification of section 572A.18, subsection (a), applies to a collaborative
lawyer representing a party with or without fee.
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new text begin (b) After a collaborative law process concludes, another lawyer in a law firm with
which a collaborative lawyer disqualified under section 572A.18, subsection (a), is
associated may represent a party without fee in the collaborative matter or a matter related
to the collaborative matter if:
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new text begin (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;
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new text begin (2) the collaborative law participation agreement so provides; and
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new text begin (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.
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Sec. 11.

new text begin [572A.20] GOVERNMENTAL ENTITY AS PARTY.
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new text begin (a) The disqualification of section 572A.18, subsection (a), applies to a collaborative
lawyer representing a party that is a government or governmental subdivision, agency,
or instrumentality.
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new text begin (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:
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new text begin (1) the collaborative law participation agreement so provides; and
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new text begin (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.
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Sec. 12.

new text begin [572A.21] DISCLOSURE OF INFORMATION.
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new text begin Except as provided by law other than sections 572A.10 to 572A.31, 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 promptly update previously disclosed information
that has materially changed. Parties may define the scope of disclosure during the
collaborative law process.
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Sec. 13.

new text begin [572A.22] STANDARDS OF PROFESSIONAL RESPONSIBILITY AND
MANDATORY REPORTING NOT AFFECTED.
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new text begin Sections 572A.10 to 572A.31 do not affect:
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new text begin (1) the professional responsibility obligations and standards applicable to a lawyer
or other licensed professional;
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new text begin (2) the authority of the Supreme Court to regulate the practice of law; or
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new text begin (3) the obligation of a person to report abuse or neglect, abandonment, or
exploitation of a child or adult under the law of this state.
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Sec. 14.

new text begin [572A.23] APPROPRIATENESS OF COLLABORATIVE LAW
PROCESS.
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new text begin Before a prospective party signs a collaborative law participation agreement, a
prospective collaborative lawyer shall:
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new text begin (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;
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new text begin (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
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new text begin (3) advise the prospective party that:
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new text begin (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;
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new text begin (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
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new text begin (C) the collaborative lawyer and any lawyer in a law firm with which the
collaborative lawyer is associated may not appear before a tribunal to represent a party in
a proceeding related to the collaborative matter, except as authorized by sections 572A.18,
subsection (c), 572A.19, subsection (b), or 572A.20, subsection (b).
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Sec. 15.

new text begin [572A.24] COERCIVE OR VIOLENT RELATIONSHIP.
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new text begin (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.
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new text begin (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.
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new text begin (c) If a collaborative lawyer reasonably believes that the party the lawyer represents
or the prospective party who consults the lawyer has a history of a coercive or violent
relationship with another party or prospective party, the lawyer may not begin or continue
a collaborative law process unless:
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new text begin (1) the party or the prospective party requests beginning or continuing a process; and
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new text begin (2) the collaborative lawyer reasonably believes that the safety of the party or
prospective party can be protected adequately during a process.
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Sec. 16.

new text begin [572A.25] CONFIDENTIALITY OF COLLABORATIVE LAW
COMMUNICATION.
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new text begin 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 sections 572A.10 to
572A.31.
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Sec. 17.

new text begin [572A.26] PRIVILEGE AGAINST DISCLOSURE FOR
COLLABORATIVE LAW COMMUNICATION; ADMISSIBILITY; DISCOVERY.
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new text begin (a) Subject to sections 572A.27 and 572A.28, a collaborative law communication
is privileged under subsection (b), is not subject to discovery, and is not admissible in
evidence.
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new text begin (b) In a proceeding, the following privileges apply:
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new text begin (1) A party may refuse to disclose, and may prevent any other person from
disclosing, a collaborative law communication.
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new text begin (2) A nonparty participant may refuse to disclose, and may prevent any other person
from disclosing, a collaborative law communication of the nonparty participant.
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new text begin (c) Evidence or information that is otherwise admissible or subject to discovery does
not become inadmissible or protected from discovery solely because of its disclosure or
use in a collaborative law process.
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Sec. 18.

new text begin [572A.27] WAIVER AND PRECLUSION OF PRIVILEGE.
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new text begin (a) A privilege under section 572A.26 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.
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new text begin (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 572A.26, but this preclusion applies only to the extent necessary for the
person prejudiced to respond to the disclosure or representation.
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Sec. 19.

new text begin [572A.28] LIMITS OF PRIVILEGE.
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new text begin (a) There is no privilege under section 572A.26 for a collaborative law
communication that is:
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new text begin (1) available to the public under chapter 13 or made during a session of a
collaborative law process that is open, or is required by law to be open, to the public;
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new text begin (2) a threat or statement of a plan to inflict bodily injury or commit a crime of
violence;
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new text begin (3) intentionally used to plan a crime, commit or attempt to commit a crime, or
conceal an ongoing crime or ongoing criminal activity; or
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new text begin (4) in an agreement resulting from the collaborative law process, evidenced by a
record signed by all parties to the agreement.
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new text begin (b) The privileges under section 572A.26 for a collaborative law communication do
not apply to the extent that a communication is:
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new text begin (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
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new text begin (2) sought or offered to prove or disprove abuse, neglect, abandonment, or
exploitation of a child or adult, unless the child protection agency or adult protection
agency is a party to or otherwise participates in the process.
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new text begin (c) There is no privilege under section 572A.26 if a tribunal finds, after a hearing
in camera, that the party seeking discovery or the proponent of the evidence has shown
the evidence is not otherwise available, the need for the evidence substantially outweighs
the interest in protecting confidentiality, and the collaborative law communication is
sought or offered in:
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new text begin (1) a court proceeding involving a felony or misdemeanor; or
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new text begin (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.
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new text begin (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.
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new text begin (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.
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new text begin (f) The privileges under section 572A.26 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.
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Sec. 20.

new text begin [572A.29] AUTHORITY OF TRIBUNAL IN CASE OF
NONCOMPLIANCE.
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new text begin (a) If an agreement fails to meet the requirements of section 572A.13, or a lawyer
fails to comply with section 572A.23 or 572A.24, a tribunal may nonetheless find that the
parties intended to enter into a collaborative law participation agreement if they:
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new text begin (1) signed a record indicating an intention to enter into a collaborative law
participation agreement; and
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new text begin (2) reasonably believed they were participating in a collaborative law process.
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new text begin (b) If a tribunal makes the findings specified in subsection (a), and the interests of
justice require, the tribunal may:
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new text begin (1) enforce an agreement evidenced by a record resulting from the process in which
the parties participated;
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new text begin (2) apply the disqualification provisions of sections 572A.14, 572A.15, 572A.18,
572A.19, and 572A.20; and
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new text begin (3) apply the privileges under section 572A.26.
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Sec. 21.

new text begin [572A.30] UNIFORMITY OF APPLICATION AND CONSTRUCTION.
new text end

new text begin In applying and construing sections 572A.10 to 572A.31, consideration must be
given to the need to promote uniformity of the law with respect to its subject matter
among states that enact it.
new text end

Sec. 22.

new text begin [572A.31] RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT.
new text end

new text begin Sections 572A.10 to 572A.31 modify, limit, and supersede the federal E-Sign,
United States Code, title 15, section 7001 et seq. (2009), but do not modify, limit, or
supersede section 101(c) of that act, United States Code, title 15, section 7001(c), or
authorize electronic delivery of any of the notices described in section 103(b) of that act,
United States Code, title 15, section 7003(b).
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Sec. 23. new text begin EFFECTIVE DATE.
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new text begin Sections 1 to 22 are effective August 1, 2010.
new text end