[UNIFORM LAW DRAFT]
RULE 8.10. UNIFORM COLLABORATIVE LAW RULE
1 (a) Definitions.
2 (1) "Collaborative law communication" means a statement, whether oral
3 or 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,
17 or issue for resolution, including a dispute, claim, or issue in a proceeding, which
18 is described in a collaborative law participation agreement.
19 (6) "Law firm" means:
20 (A) lawyers who practice law together in a partnership, professional
21 corporation, sole proprietorship, limited liability company, or association; and
22 (B) lawyers employed in a legal services organization, or the legal
23 department of a corporation or other organization, or the legal department of a
24 government or governmental subdivision, agency, or instrumentality.
25 (7) "Nonparty participant" means a person, other than a party and the
26 party's collaborative lawyer, that participates in a collaborative law process.
27 (8) "Party" means a person that signs a collaborative law participation
28 agreement and whose consent is necessary to resolve a collaborative matter.
29 (9) "Person" means an individual, corporation, business trust, estate, trust,
30 partnership, limited liability company, association, joint venture, public
31 corporation, government or governmental subdivision, agency, or instrumentality,
32 or any other legal or commercial entity.
33 (10) "Proceeding" means:
34 (A) a judicial, administrative, arbitral, or other adjudicative process before a
35 tribunal, including related prehearing and post-hearing motions, conferences, and
36 discovery; or
37 (B) a legislative hearing or similar process.
38 (11) "Prospective party" means a person that discusses with a prospective
39 collaborative lawyer the possibility of signing a collaborative law participation
41 (12) "Record" means information that is inscribed on a tangible medium or
42 that is stored in an electronic or other medium and is retrievable in perceivable
44 (13) "Related to a collaborative matter" means involving the same
45 parties, transaction or occurrence, nucleus of operative fact, dispute, claim, or
46 issue as the collaborative matter.
47 (14) "Sign" means, with present intent to authenticate or adopt a record:
48 (A) to execute or adopt a tangible symbol; or
49 (B) to attach to or logically associate with the record an electronic symbol,
50 sound, or process.
51 (15) "Tribunal" means:
52 (A) a court, arbitrator, administrative agency, or other body acting in an
53 adjudicative capacity which, after presentation of evidence or legal argument, has
54 jurisdiction to render a decision affecting a party's interests in a matter; or
55 (B) a legislative body conducting a hearing or similar process.
56 (b) Collaborative Law Participation Agreement.
57 (1) A collaborative law participation agreement must:
58 (A) be in a record;
59 (B) be signed by the parties;
60 (C) state the parties' intention to resolve a collaborative matter through a
61 collaborative law process under these rules;
62 (D) describe the nature and scope of the matter;
63 (E) identify the collaborative lawyer who represents each party in the
64 process; and
65 (F) contain a statement by each collaborative lawyer confirming the
66 lawyer's representation of a party in the collaborative law process.
67 (2) Parties may agree to include in a collaborative law participation
68 agreement additional provisions not inconsistent with these rules.
69 (c) Beginning and Concluding Collaborative Law Process.
70 (1) A collaborative law process begins when the parties sign a collaborative
71 law participation agreement.
72 (2) A tribunal may not order a party to participate in a collaborative law
73 process over that party's objection.
74 (3) A collaborative law process is concluded by a:
75 (A) resolution of a collaborative matter as evidenced by a signed record;
76 (B) resolution of a part of the collaborative matter, evidenced by a signed
77 record, in which the parties agree that the remaining parts of the matter will not be
78 resolved in the process; or
79 (C) termination of the process.
80 (4) A collaborative law process terminates:
81 (A) when a party gives notice to other parties in a record that the process is
83 (B) when a party:
84 (i) begins a proceeding related to a collaborative matter without the
85 agreement of all parties; or
86 (ii) in a pending proceeding related to the matter:
87 -- initiates a pleading, motion, order to show cause, or request for a
88 conference with the tribunal;
89 -- requests that the proceeding be put on the tribunal's active calendar; or
90 -- takes similar action requiring notice to be sent to the parties; or
91 (C) except as otherwise provided by Rule 8.10(c)(7), when a party
92 discharges a collaborative lawyer or a collaborative lawyer withdraws from further
93 representation of a party.
94 (5) A party's collaborative lawyer must give prompt notice to all other
95 parties in a record of a discharge or withdrawal.
96 (6) A party may terminate a collaborative law process with or without
98 (7) Notwithstanding the discharge or withdrawal of a collaborative lawyer,
99 a collaborative law process continues, if not later than 30 days after the date that
100 the notice of the discharge or withdrawal of a collaborative lawyer required by
101 Rule 8.10(c)(5) is sent to the parties:
102 (A) the unrepresented party engages a successor collaborative lawyer; and
103 (B) in a signed record:
104 (i) the parties consent to continue the process by reaffirming the
105 collaborative law participation agreement;
106 (ii) the agreement is amended to identify the successor collaborative lawyer;
108 (iii) the successor collaborative lawyer confirms the lawyer's representation
109 of a party in the collaborative process.
110 (8) A collaborative law process does not conclude if, with the consent of the
111 parties, a party requests a tribunal to approve a resolution of the collaborative
112 matter or any part of it as evidenced by a signed record.
113 (9) A collaborative law participation agreement may provide additional
114 methods of concluding a collaborative law process.
115 (d) Proceedings Pending Before Tribunal; Status Report.
116 (1) Persons in a proceeding pending before a tribunal may sign a
117 collaborative law participation agreement to seek to resolve a collaborative matter
118 related to the proceeding. The parties must file promptly with the tribunal a notice
119 of the agreement after it is signed. Subject to Rule 8.10(d)(3), Rule 8.10(e) and
120 Rule 8.10(f), the filing operates as an application for a stay of the proceeding.
121 (2) The parties must file promptly with the tribunal notice in a record when
122 a collaborative law process concludes. The stay of the proceeding under Rule
123 8.10(d)(1) is lifted when the notice is filed. The notice may not specify any reason
124 for termination of the process.
125 (3) A tribunal in which a proceeding is stayed under Rule 8.10(d)(1) may
126 require the parties and collaborative lawyers to provide a status report on the
127 collaborative law process and the proceeding. A status report may include only
128 information on whether the process is ongoing or concluded. It may not include a
129 report, assessment, evaluation, recommendation, finding, or other communication
130 regarding a collaborative law process or collaborative law matter.
131 (4) A tribunal may not consider a communication made in violation of Rule
133 (5) A tribunal must provide parties notice and an opportunity to be heard
134 before dismissing a proceeding in which a notice of collaborative process is filed
135 based on delay or failure to prosecute.
136 (e) Emergency Order.
137 During a collaborative law process, a tribunal may issue emergency orders
138 to protect the health, safety, welfare, or interest of a party or family member.
139 (f) Approval of Agreement by Tribunal.
140 A tribunal may approve an agreement resulting from a collaborative law
142 (g) Disqualification of Collaborative Lawyer and Lawyers in Associated Law
144 (1) Except as otherwise provided in Rule 8.10(g)(3), a collaborative lawyer
145 is disqualified from appearing before a tribunal to represent a party in a proceeding
146 related to the collaborative matter.
147 (2) Except as otherwise provided in Rule 8.10(g)(3), a lawyer in a law firm
148 with which the collaborative lawyer is associated is disqualified from appearing
149 before a tribunal to represent a party in a proceeding related to the collaborative
150 matter if the collaborative lawyer is disqualified from doing so under Rule
152 (3) A collaborative lawyer or a lawyer in a law firm with which the
153 collaborative lawyer is associated may represent a party:
154 (A) to ask a tribunal to approve an agreement resulting from the
155 collaborative law process; or
156 (B) to seek or defend an emergency order to protect the health, safety,
157 welfare, or interest of a party, or family member if a successor lawyer is not
158 immediately available to represent that person.
159 (4) If Rule 8.10(g)(3)(B) applies, a collaborative lawyer, or lawyer in a law
160 firm with which the collaborative lawyer is associated, may represent a party or
161 [insert term for family or household member] only until the person is represented
162 by a successor lawyer or reasonable measures are taken to protect the health,
163 safety, welfare, or interest of the person.
164 (h) Low Income Parties.
165 (1) The disqualification of Rule 8.10(g)(1) applies to a collaborative lawyer
166 representing a party with or without fee.
167 (2) After a collaborative law process concludes, another lawyer in a law
168 firm with which a collaborative lawyer disqualified under Rule 8.10(g)(1) is
169 associated may represent a party without fee in the collaborative matter or a matter
170 related to the collaborative matter if:
171 (A) the party has an annual income that qualifies the party for free legal
172 representation under the criteria established by the law firm for free legal
174 (B) the collaborative law participation agreement so provides; and
175 (C) the collaborative lawyer is isolated from any participation in the
176 collaborative matter or a matter related to the collaborative matter through
177 procedures within the law firm which are reasonably calculated to isolate the
178 collaborative lawyer from such participation.
179 (i) Governmental Entity as Party.
180 (1) The disqualification of Rule 8.10(g)(1) applies to a collaborative lawyer
181 representing a party that is a government or governmental subdivision, agency, or
183 (2) After a collaborative law process concludes, another lawyer in a law
184 firm with which the collaborative lawyer is associated may represent a government
185 or governmental subdivision, agency, or instrumentality in the collaborative matter
186 or a matter related to the collaborative matter if:
187 (A) the collaborative law participation agreement so provides; and
188 (B) the collaborative lawyer is isolated from any participation in the
189 collaborative matter or a matter related to the collaborative matter through
190 procedures within the law firm which are reasonably calculated to isolate the
191 collaborative lawyer from such participation.
192 (j) Disclosure of Information.
193 Except as otherwise provided by law, during the collaborative law process,
194 on the request of another party, a party must make timely, full, candid, and
195 informal disclosure of information related to the collaborative matter without
196 formal discovery. A party also must update promptly previously disclosed
197 information that has materially changed. The parties may define the scope of
198 disclosure during the collaborative law process.
199 (k) Standards of Professional Responsibility and Mandatory Reporting Not
201 These rules do not affect:
202 (1) the professional responsibility obligations and standards applicable to a
203 lawyer or other licensed professional; or
204 (2) the obligation of a person to report abuse or neglect, abandonment, or
205 exploitation of a child or adult under the law of this state.
206 (l) Appropriateness of Collaborative Law Process.
207 Before a prospective party signs a collaborative law participation
208 agreement, a prospective collaborative lawyer must:
209 (1) assess with the prospective party factors the lawyer reasonably believes
210 relate to whether a collaborative law process is appropriate for the prospective
211 party's matter;
212 (2) provide the prospective party with information that the lawyer
213 reasonably believes is sufficient for the party to make an informed decision about
214 the material benefits and risks of a collaborative law process as compared to the
215 material benefits and risks of other reasonably available alternatives for resolving
216 the proposed collaborative matter, such as litigation, mediation, arbitration, or
217 expert evaluation; and
218 (3) advise the prospective party that:
219 (A) after signing an agreement if a party initiates a proceeding or seeks
220 tribunal intervention in a pending proceeding related to the collaborative matter,
221 the collaborative law process terminates;
222 (B) participation in a collaborative law process is voluntary and any party
223 has the right to terminate unilaterally a collaborative law process with or without
224 cause; and
225 (C) the collaborative lawyer and any lawyer in a law firm with which the
226 collaborative lawyer is associated may not appear before a tribunal to represent a
227 party in a proceeding related to the collaborative matter, except as authorized by
228 Rule 8.10(g)(1), (h)(2), or (i)(2).
229 (m) Coercive or Violent Relationship.
230 (1) Before a prospective party signs a collaborative law participation
231 agreement, a prospective collaborative lawyer must make reasonable inquiry
232 whether the prospective party has a history of a coercive or violent relationship
233 with another prospective party.
234 (2) Throughout a collaborative law process, a collaborative lawyer
235 reasonably and continuously must assess whether the party the collaborative
236 lawyer represents has a history of a coercive or violent relationship with another
238 (3) If a collaborative lawyer reasonably believes that the party the lawyer
239 represents or the prospective party who consults the lawyer has a history of a
240 coercive or violent relationship with another party or prospective party, the lawyer
241 may not begin or continue a collaborative law process unless:
242 (A) the party or the prospective party requests beginning or continuing a
243 process; and
244 (B) the collaborative lawyer reasonably believes that the safety of the party
245 or prospective party can be protected adequately during a process.
246 (n) Confidentiality of Collaborative Law Communication.
247 A collaborative law communication is confidential to the extent agreed by
248 the parties in a signed record or as provided by law of this state other than these
250 (o) Authority of Tribunal in Case of Noncompliance.
251 (1) If an agreement fails to meet the requirements of Rule 8.10(b), or a
252 lawyer fails to comply with Rule 8.10(l) or (m), a tribunal may nonetheless find
253 that the parties intended to enter into a collaborative law participation agreement if
255 (A) signed a record indicating an intention to enter into a collaborative law
256 participation agreement; and
257 (B) reasonably believed they were participating in a collaborative law
259 (2) If a tribunal makes the findings specified in Rule 8.10(o)(1), and the
260 interests of justice require, the tribunal may:
261 (A) enforce an agreement evidenced by a record resulting from the process
262 in which the parties participated;
263 (B) apply the disqualification provisions of Rule 8.10(c), (d), (g), (h), and
264 (i); and
265 (C) apply a privilege under N.D.R.Ev. 513.
266 EXPLANATORY NOTE
267 Rule 8.10 took effect _____________________________.
268 Rule 8.10 is designed to facilitate use of collaborative law in North Dakota.
269 Sources: Joint Procedure Committee Minutes of September 25-26, 2014,
270 pages____; April 24-25, 2014, pages 4-10; April 25-26, 2013, pages 23-26.
271 Cross Reference: N.D.R.Ev. 513 (Collaborative Law Privilege).