RULE 8.10. COLLABORATIVE LAW

Effective Date: 3/1/2016

(a) Purpose. Collaborative law is a process in which parties and their respective collaborative lawyers and other professionals contract in writing to resolve a civil action without court action other than approval of a stipulated settlement. The process requires collaborative lawyers and other nonparty participants to be discharged if the collaborative law process is unsuccessful. The process may include the use of alternative dispute resolution neutrals as defined in N.D.R.Ct. 8.9, depending on the circumstances of the particular case.

(b) Definitions.

(1) "Collaborative law communication" means a statement, whether oral or in a document, or verbal or nonverbal, that:
(A) is made to conduct, participate in, continue, or reconvene a collaborative law process; and
(B) occurs after the parties sign a collaborative law participation agreement and before the collaborative law process is concluded.
(2) "Collaborative matter" means a dispute, transaction, claim, problem, or issue for resolution in a civil action, which is described in a collaborative law participation agreement.
(3) "Nonparty participant" means a person, other than a party and the party's collaborative lawyer, that participates in a collaborative law process.
(4) "Document" means information inscribed on a tangible medium or stored in an electronic or other medium that is retrievable in perceivable form.

(c) Deferral from Scheduling. Parties seeking to resolve a civil action using a collaborative law process must request deferral from scheduling under N.D.R.Civ.P. 16 or N.D.R.Ct. 8.3. If the court grants deferral, the court may not set any deadlines for the period specified in the order approving deferral.

(d) Collaborative Law Participation Agreement.

(1) A collaborative law participation agreement must:
(A) be in a document;
(B) be signed by the parties;
(C) state the parties' intention to resolve a collaborative matter through a collaborative law process under these rules;
(D) describe the nature and scope of the matter;
(E) identify the collaborative lawyer representing each party; and
(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 consistent with these rules.

(e) Beginning and Concluding Collaborative Law Process.

(1) A collaborative law process begins when the parties sign a collaborative law participation agreement.
(2) A court 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 a:
(A) resolution of a collaborative matter as evidenced by a signed document;
(B) resolution of a part of the collaborative matter, evidenced by a signed document, in which the parties agree that the remaining parts of the matter will not be resolved in the process; or
(C) termination of the process.
(4) A collaborative law process terminates:
(A) when a party gives notice to other parties in a document that the process is ended;
(B) when a party:
(i) begins a proceeding related to a collaborative matter without the agreement of all parties; or
(ii) in a pending proceeding related to the matter:
  • initiates a pleading, motion, order to show cause, or request for a conference with the court;
  • requests that the proceeding be put on the court's active calendar; or
  • takes similar action requiring notice to be sent to the parties; or
(C) except as otherwise provided by Rule 8.10(d)(7), when a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party.
(5) A party's collaborative lawyer must give prompt notice to all other parties in a discharge or withdrawal document.
(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 Rule 8.10(d)(5) is sent to the parties:
(A) the unrepresented party engages a successor collaborative lawyer; and
(B) in a signed document:
(i) the parties consent to continue the process by reaffirming the collaborative law participation agreement;
(ii) the agreement is amended to identify the successor collaborative lawyer; and
(iii) the successor collaborative lawyer confirms 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 court to approve a resolution of the collaborative matter or any part of it as evidenced by a signed document.
(9) A collaborative law participation agreement may provide additional methods of concluding a collaborative law process.

(f) Disqualification of Collaborative Lawyer and Lawyers in Associated Law Firm.

(1) Except as provided in Rule 8.10(e)(3), a collaborative lawyer is disqualified from appearing before a court to represent a party in a proceeding substantially related to the collaborative matter.
(2) Any disqualification of a lawyer in a law firm with which the collaborative lawyer is associated is governed under N.D.R. Prof. Conduct 1.10.
(3) A collaborative lawyer may represent a party:
(A) to ask a court to approve an agreement resulting from the collaborative law process; or
(B) to seek or defend an emergency order to protect the health, safety, welfare, or interest of a party or family member if a successor lawyer is not immediately available to represent that person.
(4) If Rule 8.10(e)(3)(B) applies, a collaborative lawyer may represent a party or family member 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.

(g) Disclosure of Information. Except as otherwise provided by law, during the collaborative law process, on the request of another party, a party must make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery. A party also must update promptly previously disclosed information that has materially changed. The parties may define the scope of disclosure during the collaborative law process.

(h) Additional Alternative Dispute Resolution Following Collaborative Law. When a case has been deferred under N.D.R.Ct. 8.10(b) and is reinstated with new counsel or a collaborative law process has resulted in withdrawal of counsel prior to the filing of the case, the court should not ordinarily order the parties to engage in further ADR proceedings without the agreement of the parties. Participation in the collaborative law process constitutes ADR participation for reporting in the N.D.R.Ct. 8.8 statement.

Rule 8.10 took effect March 1, 2016.

Rule 8.10 is designed to facilitate use of collaborative law in North Dakota and is derived from the Uniform Collaborative Law Act and Minn. Gen. R. Prac.111.05 (Collaborative Law).

Sources: Joint Procedure Committee Minutes of January 29-30, 2015, pages 3-6; September 25-26, 2014, pages 2-3; April 24-25, 2014, pages 4-10; April 25- 26, 2013, pages 23-26.

Cross Reference: N.D.R.Ev. 513 (Collaborative Law Privilege); N.D.R. Prof. Conduct 1.9 (Duties to Former Client), N.D.R. Prof. Conduct 1.10 (Imputed Disqualification: General Rule).

Effective Date Obsolete Date
03/01/2016 View