[DRAFT REJECTED BY COMMITTEE]
RULE 8.10. UNIFORM COLLABORATIVE LAW RULE
1 (a) Definitions.
2 (1) "Collaborative law communication" means a statement, whether oral or
3 in a record, or verbal or nonverbal, that:
4 (A) is made to conduct, participate in, continue, or reconvene a
5 collaborative law process; and
6 (B) occurs after the parties sign a collaborative law participation agreement
7 and before the collaborative law process is concluded.
8 (2) "Collaborative law participation agreement" means an agreement by
9 persons to participate in a collaborative law process.
10 (3) "Collaborative law process" means a procedure intended to resolve a
11 collaborative matter without intervention by a tribunal in which persons:
12 (A) sign a collaborative law participation agreement; and
13 (B) are represented by collaborative lawyers.
14 (4) "Collaborative lawyer" means a lawyer who represents a party in a
15 collaborative law process.
16 (5) "Collaborative matter" means a dispute, transaction, claim, problem, or
17 issue for resolution, including a dispute, claim, or issue in a proceeding, which
18 Alternative A: is described in a collaborative law participation agreement
19 and arises under the family or domestic relations law of this state, including:
20 (A) marriage, divorce, dissolution, annulment, and property distribution;
21 (B) child custody, visitation, and parenting time;
22 (C) alimony, maintenance, and child support;
23 (D) adoption;
24 (E) parentage; and
25 (F) premarital, marital, and post-marital agreements.
26 Alternative B: is described in a collaborative law participation agreement.
27 (6) "Law firm" means:
28 (A) lawyers who practice law together in a partnership, professional
29 corporation, sole proprietorship, limited liability company, or association; and
30 (B) lawyers employed in a legal services organization, or the legal
31 department of a corporation or other organization, or the legal department of a
32 government or governmental subdivision, agency, or instrumentality.
33 (7) "Nonparty participant" means a person, other than a party and the
34 party's collaborative lawyer, that participates in a collaborative law process.
35 (8) "Party" means a person that signs a collaborative law participation
36 agreement and 42
37 whose consent is necessary to resolve a collaborative matter.
38 (9) "Person" means an individual, corporation, business trust, estate, trust,
39 partnership, limited liability company, association, joint venture, public
40 corporation, government or governmental subdivision, agency, or instrumentality,
41 or any other legal or commercial entity.
42 (10) "Proceeding" means:
43 (A) a judicial, administrative, arbitral, or other adjudicative process before a
44 tribunal, including related prehearing and post-hearing motions, conferences, and
45 discovery; or
46 (B) a legislative hearing or similar process.
47 (11) "Prospective party" means a person that discusses with a prospective
48 collaborative lawyer the possibility of signing a collaborative law participation
50 (12) "Record" means information that is inscribed on a tangible medium or
51 that is stored in an electronic or other medium and is retrievable in perceivable
53 (13) "Related to a collaborative matter" means involving the same parties,
54 transaction or occurrence, nucleus of operative fact, dispute, claim, or issue as the
55 collaborative matter.
56 (14) "Sign" means, with present intent to authenticate or adopt a record:
57 (A) to execute or adopt a tangible symbol; or
58 (B) to attach to or logically associate with the record an electronic symbol,
59 sound, or process.
60 (15) "Tribunal" means:
61 (A) a court, arbitrator, administrative agency, or other body acting in an
62 adjudicative capacity which, after presentation of evidence or legal argument, has
63 jurisdiction to render a decision affecting a party's interests in a matter; or
64 (B) a legislative body conducting a hearing or similar process.
65 (b) Collaborative Law Participation Agreement.
66 (1) A collaborative law participation agreement must:
67 (A) be in a record;
68 (B) be signed by the parties;
69 (C) state the parties' intention to resolve a collaborative matter through a
70 collaborative law process under these rules;
71 (D) describe the nature and scope of the matter;
72 (E) identify the collaborative lawyer who represents each party in the
73 process; and
74 (F) contain a statement by each collaborative lawyer confirming the
75 lawyer's representation of a party in the collaborative law process.
76 (2) Parties may agree to include in a collaborative law participation
77 agreement additional provisions not inconsistent with these rules.
78 (c) Beginning and Concluding Collaborative Law Process.
79 (1) A collaborative law process begins when the parties sign a collaborative
80 law participation agreement.
81 (2) A tribunal may not order a party to participate in a collaborative law
82 process over that party's objection.
83 (3) A collaborative law process is concluded by a:
84 (A) resolution of a collaborative matter as evidenced by a signed record;
85 (B) resolution of a part of the collaborative matter, evidenced by a signed
86 record, in which the parties agree that the remaining parts of the matter will not be
87 resolved in the process; or
88 (C) termination of the process.
89 (4) A collaborative law process terminates:
90 (A) when a party gives notice to other parties in a record that the process is
92 (B) when a party:
93 (i) begins a proceeding related to a collaborative matter without the 52
94 agreement of all parties; or
95 (ii) in a pending proceeding related to the matter:
96 -- initiates a pleading, motion, order to show cause, or request for a
97 conference with the tribunal;
98 -- requests that the proceeding be put on the [tribunal's active calendar]; or
99 -- takes similar action requiring notice to be sent to the parties; or
100 (C) except as otherwise provided by Rule 8.1 (c)(7), when a party
101 discharges a collaborative lawyer or a collaborative lawyer withdraws from further
102 representation of a party.
103 (5) A party's collaborative lawyer shall give prompt notice to all other
104 parties in a record of a discharge or withdrawal.
105 (6) A party may terminate a collaborative law process with or without
107 (7) Notwithstanding the discharge or withdrawal of a collaborative lawyer,
108 a collaborative law process continues, if not later than 30 days after the date that
109 the notice of the discharge or withdrawal of a collaborative lawyer required by
110 paragraph (e) is sent to the parties:
111 (A) the unrepresented party engages a successor collaborative lawyer; and
112 (B) in a signed record:
113 (i) the parties consent to continue the process by reaffirming the
114 collaborative law participation agreement;
115 (ii) the agreement is amended to identify the successor collaborative lawyer;
117 (iii) the successor collaborative lawyer confirms the lawyer's representation
118 of a party in the collaborative process. 53
119 (8) A collaborative law process does not conclude if, with the consent of the
120 parties, a party requests a tribunal to approve a resolution of the collaborative
121 matter or any part thereof as evidenced by a signed record.
122 (9) A collaborative law participation agreement may provide additional
123 methods of concluding a collaborative law process.
124 (d) Proceedings Pending Before Tribunal; Status Report.
125 (1) Persons in a proceeding pending before a tribunal may sign a
126 collaborative law participation agreement to seek to resolve a collaborative matter
127 related to the proceeding. The parties shall file promptly with the tribunal a notice
128 of the agreement after it is signed. Subject to paragraph (c) and Rules 7 and 8, the
129 filing operates as an application for a stay of the proceeding.
130 (2) The parties shall file promptly with the tribunal notice in a record when
131 a collaborative law process concludes. The stay of the proceeding under paragraph
132 (a) is lifted when the notice is filed. The notice may not specify any reason for
133 termination of the process.
134 (3) A tribunal in which a proceeding is stayed under paragraph (a) may
135 require the parties and collaborative lawyers to provide a status report on the
136 collaborative law process and the proceeding. A status report may include only
137 information on whether the process is ongoing or concluded. It may not include a
138 report, assessment, evaluation, recommendation, finding, or other communication
139 regarding a collaborative law process or collaborative law matter.
140 (4) A tribunal may not consider a communication made in violation of
141 paragraph ©.
142 (5) A tribunal shall provide parties notice and an opportunity to be heard
143 before dismissing a proceeding in which a notice of collaborative process is filed
144 based on delay or failure to prosecute.
145 (e) Emergency Order. During a collaborative law process, a tribunal may
146 issue emergency orders to protect the health, safety, welfare, or interest of a party
147 or [insert term for family or household member as defined in [state civil protection
148 order statute]].
149 (f) Approval of Agreement by Tribunal. A tribunal may approve an
150 agreement resulting from a collaborative law process.
151 (g) Disqualification of Collaborative Lawyer and Lawyers in Associated
152 Law Firm.
153 (1) Except as otherwise provided in Rule 8.1(g)(3), a collaborative lawyer is
154 disqualified from appearing before a tribunal to represent a party in a proceeding
155 related to the collaborative matter.
156 (2) Except as otherwise provided in paragraph (c) and Rules 10 and 11, a
157 lawyer in a law firm with which the collaborative lawyer is associated is
158 disqualified from appearing before a tribunal to represent a party in a proceeding
159 related to the collaborative matter if the collaborative lawyer is disqualified from
160 doing so under paragraph (a).
161 (3) A collaborative lawyer or a lawyer in a law firm with which the
162 collaborative lawyer is associated may represent a party:
163 (A) to ask a tribunal to approve an agreement resulting from the
164 collaborative law process; or
165 (B) to seek or defend an emergency order to protect the health, safety,
166 welfare, or interest of a party, or [insert term for family or household member as
167 defined in [state civil protection order statute]] if a successor lawyer is not
168 immediately available to represent that person.
169 (4) If Rule 8.1 (3)(B) applies, a collaborative lawyer, or lawyer in a law
170 firm with which the collaborative lawyer is associated, may represent a party or
171 [insert term for family or household member] only until the person is represented
172 by a successor lawyer or reasonable measures are taken to protect the health,
173 safety, welfare, or interest of the person.
174 (h) Low Income Parties.
175 (1) The disqualification of Rule8.1(g)(1) applies to a collaborative lawyer
176 representing a party with or without fee.
177 (b) After a collaborative law process concludes, another lawyer in a law
178 firm with which a collaborative lawyer disqualified under Rule 8.1(g)(1) is
179 associated may represent a party without fee in the collaborative matter or a matter
180 related to the collaborative matter if:
181 (A) the party has an annual income that qualifies the party for free legal
182 representation under the criteria established by the law firm for free legal
184 (B) the collaborative law participation agreement so provides; and
185 (C) the collaborative lawyer is isolated from any participation in the
186 collaborative matter or a matter related to the collaborative matter through
187 procedures within the law firm which are reasonably calculated to isolate the
188 collaborative lawyer from such participation.
189 (i) Governmental Entity as Party.
190 (1) The disqualification of Rule 8.1(g)(1) applies to a collaborative lawyer
191 representing a party that is a government or governmental subdivision, agency, or
193 (2) After a collaborative law process concludes, another lawyer in a law
194 firm with which the collaborative lawyer is associated may represent a government
195 or governmental subdivision, agency, or instrumentality in the collaborative matter
196 or a matter related to the collaborative matter if:
197 (A) the collaborative law participation agreement so provides; and
198 (B) the collaborative lawyer is isolated from any participation in the
199 collaborative matter or a matter related to the collaborative matter through
200 procedures within the law firm which are reasonably calculated to isolate the
201 collaborative lawyer from such participation.
202 (j) Disclosure of Information. Except as provided by law other than these
203 rules, during the collaborative law process, on the request of another party, a party
204 shall make timely, full, candid, and informal disclosure of information related to
205 the collaborative matter without formal discovery. A party also shall update
206 promptly previously disclosed information that has materially changed. The parties
207 may define the scope of disclosure during the collaborative law process.
208 (k) Standards of Professional Responsibility and Mandatory Reporting Not
209 Affected. These rules do not affect:
210 (1) the professional responsibility obligations and standards applicable to a
211 lawyer or other licensed professional; or
212 (2) the obligation of a person to report abuse or neglect, abandonment, or
213 exploitation of a child or adult under the law of this state.
214 (l) Appropriateness of Collaborative Law Process. Before a prospective
215 party signs a collaborative law participation agreement, a prospective collaborative
216 lawyer shall:
217 (1) assess with the prospective party factors the lawyer reasonably believes
218 relate to whether a collaborative law process is appropriate for the prospective
219 party's matter;
220 (2) provide the prospective party with information that the lawyer
221 reasonably believes is sufficient for the party to make an informed decision about
222 the material benefits and risks of a collaborative law process as compared to the
223 material benefits and risks of other reasonably available alternatives for resolving
224 the proposed collaborative matter, such as litigation, mediation, arbitration, or
225 expert evaluation; and
226 (3) advise the prospective party that:
227 (A) after signing an agreement if a party initiates a proceeding or seeks
228 tribunal intervention in a pending proceeding related to the collaborative matter,
229 the collaborative law process terminates;
230 (B) participation in a collaborative law process is voluntary and any party
231 has the right to terminate unilaterally a collaborative law process with or without
232 cause; and
233 (C) the collaborative lawyer and any lawyer in a law firm with which the
234 collaborative lawyer is associated may not appear before a tribunal to represent a
235 party in a proceeding related to the collaborative matter, except as authorized by
236 Rule 8.1 (g)(1), (h)(2), or (i)(2).
237 (m) Coercive or Violent Relationship.
238 (1) Before a prospective party signs a collaborative law participation
239 agreement, a prospective collaborative lawyer shall make reasonable inquiry
240 whether the prospective party has a history of a coercive or violent relationship
241 with another prospective party.
242 (2) Throughout a collaborative law process, a collaborative lawyer
243 reasonably and continuously shall assess whether the party the collaborative lawyer
244 represents has a history of a coercive or violent relationship with another party.
245 (3) If a collaborative lawyer reasonably believes that the party the lawyer
246 represents or the prospective party who consults the lawyer has a history of a
247 coercive or violent relationship with another party or prospective party, the lawyer
248 may not begin or continue a collaborative law process unless:
249 (A) the party or the prospective party requests beginning or continuing a
250 process; and
251 (B) the collaborative lawyer reasonably believes that the safety of the party
252 or prospective party can be protected adequately during a process.
253 (n) Confidentiality of Collaborative Law Communication. A collaborative
254 law communication is confidential to the extent agreed by the parties in a signed
255 record or as provided by law of this state other than these rules.
256 (o) Privilege Against Disclosure for Collaborative Law Communication;
257 Admissibility; Discovery.
258 (1) Subject to Rules 18 and 19, a collaborative law communication is
259 privileged under Rule 8.1(o) (2), is not subject to discovery, and is not admissible
260 in evidence.
261 (2) In a proceeding, the following privileges apply:
262 (A) A party may refuse to disclose, and may prevent any other person from
263 disclosing, a collaborative law communication.
264 (B) A nonparty participant may refuse to disclose, and may prevent any
265 other person from disclosing, a collaborative law communication of the nonparty
267 (3) Evidence or information that is otherwise admissible or subject to
268 discovery does not become inadmissible or protected from discovery solely
269 because of its disclosure or use in a collaborative law process.
270 (p) Waiver and Preclusion of Privilege.
271 (1) A privilege under Rule 8.1(o) may be waived in a record or orally
272 during a proceeding if it is expressly waived by all parties and, in the case of the
273 privilege of a nonparty participant, it is also expressly waived by the nonparty
275 (2) A person that makes a disclosure or representation about a collaborative
276 law communication which prejudices another person in a proceeding may not
277 assert a privilege under Rule 8.1(o), but this preclusion applies only to the extent
278 necessary for the person prejudiced to respond to the disclosure or representation.
279 (q) Limits of Privilege.
280 (1) There is no privilege under Rule 8.1(o) for a collaborative law
281 communication that is:
282 (A) available to the public under [state open records act] or made during a
283 session of a collaborative law process that is open, or is required by law to be
284 open, to the public;
285 (B) a threat or statement of a plan to inflict bodily injury or commit a crime
286 of violence;
287 (C) intentionally used to plan a crime, commit or attempt to commit a crime,
288 or conceal an ongoing crime or ongoing criminal activity; or
289 (D) in an agreement resulting from the collaborative law process, evidenced
290 by a record signed by all parties to the agreement.
291 (2) The privileges under Rule 8.1(o) for a collaborative law communication
292 do not apply to the extent that a communication is:
293 (A) sought or offered to prove or disprove a claim or complaint of
294 professional misconduct or malpractice arising from or related to a collaborative
295 law process; or
296 (B) sought or offered to prove or disprove abuse, neglect, abandonment, or
297 exploitation of a child or adult, unless the [child protective services agency or adult
298 protective services agency] is a party to or otherwise participates in the process.
299 (3) There is no privilege under Rule 8.1(o) if a tribunal finds, after a
300 hearing in camera, that the party seeking discovery or the proponent of the
301 evidence has shown the evidence is not otherwise available, the need for the
302 evidence substantially outweighs the interest in protecting confidentiality, and the
303 collaborative law communication is sought or offered in:
304 (A) a court proceeding involving a felony [or misdemeanor]; or
305 (B) a proceeding seeking rescission or reformation of a contract arising out
306 of the 67
307 collaborative law process or in which a defense to avoid liability on the contract is
309 (4) If a collaborative law communication is subject to an exception under
310 paragraph (2) or (3), only the part of the communication necessary for the
311 application of the exception may be disclosed or admitted.
312 (5) Disclosure or admission of evidence excepted from the privilege under
313 paragraph (2) or (3) does not make the evidence or any other collaborative law
314 communication discoverable or admissible for any other purpose.
315 (6) The privileges under Rule 8.1(o) do not apply if the parties agree in
316 advance in a signed record, or if a record of a proceeding reflects agreement by the
317 parties, that all or part of a collaborative law process is not privileged. This
318 paragraph does not apply to a collaborative law communication made by a person
319 that did not receive actual notice of the agreement before the communication was
321 (r) Authority of Tribunal in Case of Noncompliance.
322 (1) If an agreement fails to meet the requirements of Rule 8.1(b), or a
323 lawyer fails to comply with Rule 8.1(l) or (m), a tribunal may nonetheless find that
324 the parties intended to enter into a collaborative law participation agreement if
326 (A) signed a record indicating an intention to enter into a collaborative law
327 participation agreement; and
328 (B) reasonably believed they were participating in a collaborative law
330 (2) If a tribunal makes the findings specified in paragraph (1), and the
331 interests of justice require, the tribunal may:
332 (A) enforce an agreement evidenced by a record resulting from the process
333 in which the parties participated;
334 (B) apply the disqualification provisions of Rule 8.1 (c), (d), (g), (h), and
335 (i); and
336 (C) apply a privilege under Rule 8.1(o).
337 EXPLANATORY NOTE
338 Rule 8.1 took effect _____________________________.