Collaborative Law Gets a National Boost

By Mary S. Pence and Norma Levine Trusch

Picture 215 Commissioners of the Uniform Law Commission1, from 50 states and two territories, sitting in a rather grand conference center in Big Sky, Montana.

Picture, on the dais, three collaboratively trained attorneys, Peter Munson2, the Chairman of the Drafting Committee for a Uniform Collaborative Law Act (“UCLA”), Harry Tindall3, the Vice Chairman of the Drafting Committee, and Carlton Stansbury4, the official ABA Observer to the Drafting Committee5.

Picture, on the floor of the Conference, Observers to the work of the Drafting Committee, Norma Levine Trusch, from Texas, Mary S. Pence, from Washington, D.C., and Linda K. Wray from Minnesota, all IACP members.

In this setting, on July 22, 2008, the First Reading of the Uniform Collaborative Law Act took place on the floor of the annual conference of the Uniform Law Commission. The questions and comments from the Commissioners were substantive and informed, beginning with the definitions in the statute and continuing on from there. All of us participating in the effort on behalf of the Collaborative Law movement felt that the draft statute was very positively received by the Commission.

Questions and comments from the Commissioners included:

1. Is the disqualification provision really necessary?

2. In the case of an attorney who is a member of a law firm, could a “Chinese Wall” segregating the collaborative attorney from the rest of the firm suffice, as opposed to disqualification of the entire law firm?

3. Is there a risk that a case might come within the purview of this statute when the parties and counsel did not intend it to be a Collaborative Law case?

4. When a Collaborative Law case fails, what disclosures from collaborative counsel to litigation counsel are permissible/appropriate?

5. Should the statute be limited to family law matters, or should its reach extend to any matter where the parties have interests which could be addressed through the Collaborative Law process?

6. With regard to the provisions of the statute relating to cases with domestic violence issues, how would a Collaborative Law attorney demonstrate the “competence” in representing victims of domestic violence required by the statute?  Doesn’t this provision invite malpractice allegations if things go wrong?

7. The statute creates a narrow exception to the termination of the Collaborative Law process if litigation is initiated. That exception relates to an emergency protective proceeding if no successor lawyer is immediately available. How rigorous or flexible is the standard for determining whether successor counsel is available?

8. Is a problem created when state legislatures mandate competence for lawyers, rather than leaving this area to the courts?

The Drafting Committee for the UCLA will meet again in November, 2008 to consider the issues raised on the floor of the Commission, as well as other written comments received. The Act will have its Second Reading, and will hopefully be passed by, the Uniform Law Commission at its next meeting in the summer of 2009. It will then go to the House of Delegates of the American Bar Association and then, if approved there, to the individual states for enactment. The IACP plans to be “front and center” in that effort.

1 The Uniform Law Commission, previously known as the National Conference of Commissioners on Uniform State Laws (“NCCUSL”), has promulgated numerous uniform statutes, including the UCC, the UCCJA and UCCJEA, the Uniform Mediation Act, etc.

2 Peter Munson is a Commissioner from Texas.

3 Harry Tindall is also a Commissioner from Texas, and is a member of the IACP.

4 Carlton Stansbury is also a member of the IACP.

5 Talia Katz, Executive Director of the IACP, has also participated as an Observer to the work of the Drafting Committee.