SENATE BILL No. 714

 

 

December 5, 2013, Introduced by Senator SCHUITMAKER and referred to the Committee on Judiciary.

 

 

 

     A bill to adopt the uniform collaborative law act; to allow

 

parties to agree to a collaborative alternative dispute resolution

 

process as an alternative to litigation; and to provide remedies.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. This act shall be known and may be cited as the

 

"uniform collaborative law act".

 

     Sec 2. As used in this act:

 

     (a) "Collaborative law communication" means a statement,

 

whether oral or in a record, or verbal or nonverbal, to which both

 

of the following apply:

 

     (i) The statement is made to conduct, participate in, continue,

 

or reconvene a collaborative law process.

 

     (ii) The statement occurs after the parties sign a


 

collaborative law participation agreement and before the

 

collaborative law process is concluded.

 

     (b) "Collaborative law participation agreement" means an

 

agreement by persons to participate in a collaborative law process.

 

     (c) "Collaborative law process" means a procedure intended to

 

resolve a collaborative matter without intervention by a tribunal

 

in which persons sign a collaborative law participation agreement

 

and are represented by collaborative lawyers.

 

     (d) "Collaborative lawyer" means a lawyer who represents a

 

party in a collaborative law process.

 

     (e) "Collaborative matter" means a dispute, transaction,

 

claim, problem, or issue for resolution, including a dispute,

 

claim, or issue in a proceeding, that is described in a

 

collaborative law participation agreement and arises under the

 

family or domestic relations law of this state, including any of

 

the following:

 

     (i) Marriage, divorce, dissolution, annulment, and property

 

distribution.

 

     (ii) Child custody, visitation, and parenting time.

 

     (iii) Alimony, maintenance, and child support.

 

     (iv) Adoption.

 

     (v) Parentage.

 

     (vi) Premarital, marital, and postmarital agreements.

 

     (f) "Law firm" means both of the following:

 

     (i) Lawyers who practice law together in a partnership,

 

professional corporation, sole proprietorship, limited liability

 

company, or association.


 

     (ii) 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.

 

     (g) "Nonparty participant" means a person, other than a party

 

and the party's collaborative lawyer, that participates in a

 

collaborative law process.

 

     (h) "Party" means a person that signs a collaborative law

 

participation agreement and whose consent is necessary to resolve a

 

collaborative matter.

 

     (i) "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.

 

     (j) "Proceeding" means any of the following:

 

     (i) A judicial, administrative, arbitral, or other adjudicative

 

process before a tribunal, including related prehearing and

 

posthearing motions, conferences, and discovery.

 

     (ii) A legislative hearing or similar process.

 

     (k) "Prospective party" means a person that discusses with a

 

prospective collaborative lawyer the possibility of signing a

 

collaborative law participation agreement.

 

     (l) "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.

 

     (m) "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.

 

     (n) "Sign" means, with present intent to authenticate or adopt

 

a record, either of the following:

 

     (i) To execute or adopt a tangible symbol.

 

     (ii) To attach to or logically associate with the record an

 

electronic symbol, sound, or process.

 

     (o) "Tribunal" means any of the following:

 

     (i) A court, arbitrator, administrative agency, or other body

 

acting in an adjudicative capacity that, after presentation of

 

evidence or legal argument, has jurisdiction to render a decision

 

affecting a party's interests in a matter.

 

     (ii) A legislative body conducting a hearing or similar

 

process.

 

     Sec. 3. 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.

 

     Sec. 4. (1) A collaborative law participation agreement must

 

satisfy all of the following requirements:

 

     (a) Be in a record.

 

     (b) Be signed by the parties.

 

     (c) State the parties' intention to resolve a collaborative

 

matter through a collaborative law process under this act.

 

     (d) Describe the nature and scope of the matter.

 

     (e) Identify the collaborative lawyer who represents each

 

party in the process.

 

     (f) Contain a statement by each collaborative lawyer


 

confirming the lawyer's representation of a party in the

 

collaborative law process.

 

     (2) Parties may agree to include in a collaborative law

 

participation agreement additional provisions not inconsistent with

 

this act.

 

     Sec. 5. (1) A collaborative law process begins when the

 

parties sign a collaborative law participation agreement.

 

     (2) A tribunal may not order a party to participate in a

 

collaborative law process over that party's objection.

 

     (3) A collaborative law process is concluded by 1 of the

 

following:

 

     (a) Resolution of a collaborative matter as evidenced by a

 

signed record.

 

     (b) 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.

 

     (c) Termination of the process.

 

     (4) A collaborative law process terminates when any of the

 

following occur:

 

     (a) A party gives notice to other parties in a record that the

 

process is ended.

 

     (b) A party does any of the following:

 

     (i) Begins a proceeding related to a collaborative matter

 

without the agreement of all parties.

 

     (ii) In a pending proceeding related to the matter, does any of

 

the following:

 

     (A) Initiates a pleading, motion, order to show cause, or


 

request for a conference with the tribunal.

 

     (B) Requests that the proceeding be put on the tribunal's

 

active calendar.

 

     (C) Takes similar action requiring notice to be sent to the

 

parties.

 

     (c) Except as otherwise provided by subsection (7), a party

 

discharges a collaborative lawyer or a collaborative lawyer

 

withdraws from further representation of a party.

 

     (5) A party's collaborative lawyer shall give prompt notice to

 

all other parties in a record of a discharge or withdrawal.

 

     (6) A party may terminate a collaborative law process with or

 

without cause.

 

     (7) 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 (5)

 

is sent to the parties, both of the following occur:

 

     (a) The unrepresented party engages a successor collaborative

 

lawyer.

 

     (b) A record is signed that satisfies all of the following

 

requirements:

 

     (i) The parties consent in the record to continue the process

 

by reaffirming the collaborative law participation agreement.

 

     (ii) The agreement is amended in the record to identify the

 

successor collaborative lawyer.

 

     (iii) The successor collaborative lawyer confirms in the record

 

the lawyer's representation of a party in the collaborative


 

process.

 

     (8) 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 of the matter as

 

evidenced by a signed record.

 

     (9) A collaborative law participation agreement may provide

 

additional methods of concluding a collaborative law process.

 

     Sec. 6. (1) 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. The

 

parties shall file promptly with the tribunal a notice of the

 

agreement after it is signed. Subject to subsection (3) and

 

sections 7 and 8, the filing operates as an application for a stay

 

of the proceeding.

 

     (2) The parties shall file promptly with the tribunal notice

 

in a record when a collaborative law process concludes. The stay of

 

the proceeding under subsection (1) is lifted when the notice is

 

filed. The notice may not specify any reason for termination of the

 

process.

 

     (3) A tribunal in which a proceeding is stayed under

 

subsection (1) may require the 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.


 

     (4) A tribunal may not consider a communication made in

 

violation of subsection (3).

 

     (5) 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.

 

     Sec. 7. During a collaborative law process, a tribunal may

 

issue emergency orders to protect the health, safety, welfare, or

 

interest of a party as provided in section 2950 of the revised

 

judicature act of 1961, 1961 PA 236, MCL 600.2950.

 

     Sec. 8. A tribunal may approve an agreement resulting from a

 

collaborative law process.

 

     Sec. 9. (1) Except as otherwise provided in subsection (3), a

 

collaborative lawyer is disqualified from appearing before a

 

tribunal to represent a party in a proceeding related to the

 

collaborative matter.

 

     (2) Except as otherwise provided in subsection (3) and

 

sections 10 and 11, 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 (1).

 

     (3) A collaborative lawyer or a lawyer in a law firm with

 

which the collaborative lawyer is associated may represent a party

 

to do either of the following:

 

     (a) Ask a tribunal to approve an agreement resulting from the

 

collaborative law process.


 

     (b) Seek or defend an emergency order to protect the health,

 

safety, welfare, or interest of a party if a successor lawyer is

 

not immediately available to represent that person.

 

     (4) If subsection (3)(b) applies, a collaborative lawyer, or

 

lawyer in a law firm with which the collaborative lawyer is

 

associated, may represent a party only until the person is

 

represented by a successor lawyer or reasonable measures are taken

 

to protect the health, safety, welfare, or interest of the person.

 

     Sec. 10. (1) The disqualification of section 9(1) applies to a

 

collaborative lawyer representing a party with or without fee.

 

     (2) After a collaborative law process concludes, another

 

lawyer in a law firm with which a collaborative lawyer disqualified

 

under section 9(1) is associated may represent a party without fee

 

in the collaborative matter or a matter related to the

 

collaborative matter if all of the following apply:

 

     (a) 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.

 

     (b) The collaborative law participation agreement so provides.

 

     (c) 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

 

that are reasonably calculated to isolate the collaborative lawyer

 

from the participation.

 

     Sec. 11. (1) The disqualification of section 9(1) applies to a

 

collaborative lawyer representing a party that is a government or

 

governmental subdivision, agency, or instrumentality.


 

     (2) 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 both of the following apply:

 

     (a) The collaborative law participation agreement so provides.

 

     (b) 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

 

that are reasonably calculated to isolate the collaborative lawyer

 

from the participation.

 

     Sec. 12. 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. The parties may define the

 

scope of disclosure during the collaborative law process.

 

     Sec. 13. This act does not affect either of the following:

 

     (a) The professional responsibility obligations and standards

 

applicable to a lawyer or other licensed professional.

 

     (b) The obligation of a person to report abuse or neglect,

 

abandonment, or exploitation of a child or adult under the law of

 

this state.

 

     Sec. 14. Before a prospective party signs a collaborative law

 

participation agreement, a prospective collaborative lawyer shall

 

do all of the following:


 

     (a) 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.

 

     (b) 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.

 

     (c) Advise the prospective party of all of the following:

 

     (i) That 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.

 

     (ii) That 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.

 

     (iii) That the collaborative lawyer and any lawyer in a law firm

 

with which the collaborative lawyer is associated may not appear

 

before a tribunal to represent a party in a proceeding related to

 

the collaborative matter, except as authorized by section 9(3),

 

10(2), or 11(2).

 

     Sec. 15. (1) Before a prospective party signs a collaborative

 

law participation agreement, a prospective collaborative lawyer

 

shall make reasonable inquiry whether the prospective party has a

 

history of a coercive or violent relationship with another


 

prospective party. A reasonable inquiry includes the use of the

 

domestic violence screening protocol for mediation provided by the

 

state court administrative office.

 

     (2) 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.

 

     (3) 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 both of the following

 

apply:

 

     (a) The party or the prospective party requests beginning or

 

continuing a process.

 

     (b) The collaborative lawyer reasonably believes that the

 

safety of the party or prospective party can be protected

 

adequately during a process.

 

     Sec. 16. 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.

 

     Sec. 17. (1) Subject to sections 18 and 19, a collaborative

 

law communication is privileged under subsection (2), is not

 

subject to discovery, and is not admissible in evidence.

 

     (2) In a proceeding, the following privileges apply:

 

     (a) A party may refuse to disclose, and may prevent any other

 

person from disclosing, a collaborative law communication.


 

     (b) A nonparty participant may refuse to disclose, and may

 

prevent any other person from disclosing, a collaborative law

 

communication of the nonparty participant.

 

     (3) 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.

 

     Sec. 18. (1) 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.

 

     (2) A person that makes a disclosure or representation about a

 

collaborative law communication that 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.

 

     Sec. 19. (1) There is no privilege under section 17 for a

 

collaborative law communication that is any of the following:

 

     (a) Available to the public under the freedom of information

 

act, 1976 PA 442, MCL 15.231 to 15.246, or made during a session of

 

a collaborative law process that is open, or is required by law to

 

be open, to the public.

 

     (b) A threat or statement of a plan to inflict bodily injury

 

or commit a crime of violence.

 

     (c) Intentionally used to plan a crime, commit or attempt to

 

commit a crime, or conceal an ongoing crime or ongoing criminal


 

activity.

 

     (d) In an agreement resulting from the collaborative law

 

process, evidenced by a record signed by all parties to the

 

agreement.

 

     (2) The privileges under section 17 for a collaborative law

 

communication do not apply to the extent that a communication is

 

either of the following:

 

     (a) 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.

 

     (b) Sought or offered to prove or disprove abuse, neglect,

 

abandonment, or exploitation of a child or adult, unless the

 

department of human services is a party to or otherwise

 

participates in the process.

 

     (3) There is no privilege under section 17 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 any of the

 

following:

 

     (a) A court proceeding involving a felony or misdemeanor.

 

     (b) 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.

 

     (4) If a collaborative law communication is subject to an

 

exception under subsection (2) or (3), only the part of the


 

communication necessary for the application of the exception may be

 

disclosed or admitted.

 

     (5) Disclosure or admission of evidence excepted from the

 

privilege under subsection (2) or (3) does not make the evidence or

 

any other collaborative law communication discoverable or

 

admissible for any other purpose.

 

     (6) 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.

 

     Sec. 20. (1) 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 both of the

 

following apply:

 

     (a) The parties signed a record indicating an intention to

 

enter into a collaborative law participation agreement.

 

     (b) The parties reasonably believed they were participating in

 

a collaborative law process.

 

     (2) If a tribunal makes the findings specified in subsection

 

(1), and the interests of justice require, the tribunal may do all

 

of the following:

 

     (a) Enforce an agreement evidenced by a record resulting from

 

the process in which the parties participated.


 

     (b) Apply the disqualification provisions of sections 5, 6, 9,

 

10, and 11.

 

     (c) Apply a privilege under section 17.

 

     Sec. 21. 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.

 

     Sec. 22. This act modifies, limits, and supersedes the federal

 

electronic signatures in global and national commerce act, 15 USC

 

7001 to 7031, but does not modify, limit, or supersede section

 

101(c) of that act, 15 USC 7001(c), or authorize electronic

 

delivery of any of the notices described in section 103(b) of that

 

act, 15 USC 7003(b).

 

     Sec. 24. This act takes effect 180 days after it is enacted

 

into law.