Rule 67.1.Collaborative Law Proceedings

Rule 67.1 is long because it is a uniform act adopted whole. The design rests on a single structural bargain, and everything else supports it.

The bargain

Parties sign a collaborative law participation agreement and are represented by collaborative lawyers or collaborative legal paraprofessionals. If the process fails and the matter goes to court, those lawyers are disqualified from representing the parties in it -- and so is every lawyer in their firms. The lawyers therefore have no professional interest in the process collapsing, because they lose the case if it does.

What the agreement must contain

In writing, signed by the parties, stating their intention to resolve the matter through a collaborative law process, describing the nature and scope of the matter, identifying each party's representative, and containing each representative's confirmation of that representation. Parties may add anything not inconsistent with the rule.

A collaborative matter covers marriage, dissolution, annulment and property distribution; legal decision-making, parenting time and visitation; spousal maintenance and child support; adoption; parentage; and premarital, marital and post-marital agreements.

Beginning, and the many ways of ending

The process begins on signature, and a tribunal may not order a party into it over that party's objection. It concludes on full resolution, on partial resolution where the parties agree the rest will not be resolved in the process, or on termination -- which happens when a party gives written notice, begins or activates a related court proceeding, or discharges a collaborative lawyer who then withdraws. A party may terminate with or without cause.

A discharge or withdrawal need not be fatal. If within 30 days the unrepresented party engages a successor and the parties sign a document reaffirming the agreement, naming the successor and confirming the new representation, the process continues.

The stay, and the status report

Where a proceeding is already pending, filing notice of the agreement operates as an application for a stay. The tribunal may require a status report -- but the report may say only whether the process is ongoing or concluded. It may not include any report, assessment, evaluation, recommendation or finding, and a tribunal may not consider a communication made in violation of that limit. When the process concludes, the notice filed may not specify any reason for termination. And the tribunal must give notice and an opportunity to be heard before dismissing a stayed case for delay or failure to prosecute.

Two exceptions to disqualification

A collaborative lawyer may still appear to ask a tribunal to approve an agreement reached in the process, or to seek or defend an emergency order protecting health, safety, welfare or interest -- and in the emergency case only until a successor lawyer is available or reasonable protective measures are taken. Separate carve-outs let a firm continue representing a low income party without fee, or a governmental entity, where the agreement so provides and the collaborative lawyer is screened off.

Informal disclosure replaces discovery

During the process, on request, a party must make timely, full, candid and informal disclosure of information related to the matter without formal discovery, and must promptly update anything that materially changes. The parties define the scope themselves.

Screening before anyone signs

Before a prospective party signs, the lawyer must assess whether the process is appropriate, give enough information to weigh it against litigation, mediation, arbitration and expert evaluation, and advise that court involvement terminates the process, that participation is voluntary and terminable at will, and that the disqualification applies.

Separately and continuously, the lawyer must inquire into and assess whether there is a history of a coercive or violent relationship. If the lawyer reasonably believes there is, the process may not begin or continue unless the party asks to proceed and the lawyer reasonably believes their safety can be adequately protected.

Privilege

A collaborative law communication is privileged, not discoverable and not admissible. A party may refuse to disclose one and prevent others from doing so; a nonparty participant may do the same for their own. Evidence otherwise discoverable does not become protected merely by being used in the process. Waiver requires express waiver by all parties -- and by the nonparty participant for theirs.

The privilege does not cover a communication that is public, a threat or plan to inflict bodily injury, one used to plan or conceal a crime, or one contained in the signed resulting agreement. It does not apply to proving professional misconduct or malpractice, or to proving abuse, neglect, abandonment or exploitation. And a tribunal may pierce it after an in camera hearing where the evidence is not otherwise available, the need substantially outweighs confidentiality, and the matter is a felony or misdemeanor proceeding or one to rescind or reform a contract arising from the process. Even then, only the necessary part is disclosed.

When the paperwork was wrong

If the agreement fails the formal requirements or a lawyer skipped the screening duties, the tribunal may still find the parties intended a collaborative law process where they signed a record indicating that intention and reasonably believed they were in one -- and, if the interests of justice require, enforce the resulting agreement and apply the disqualification and privilege provisions.