the uniform collaborative law act gretchen m. walther, esq. harry l. tindall, esq

The Uniform Collaborative Law The Uniform Collaborative Law ActAct

Gretchen M. Walther, Esq.Gretchen M. Walther, Esq.Harry L. Tindall, Esq.Harry L. Tindall, Esq.

“ The transformation that often occurs in the attorneys capacity to find creative solutions to thorny issues in collaborative practice simply must be experienced to be believed, and the essential key to entering this “creative hyperspace” is the disqualification agreement. Without it, you may have something cordial and reasonably effective in settling cases, but you do not have collaborative law.”

Pauline Tesler, Collaborative Law: What It Is and Why Family Law Attorneys Need to Know Pauline Tesler, Collaborative Law: What It Is and Why Family Law Attorneys Need to Know About It, American Journal of Family Law 1999, Vol.13, 215-225, 220.About It, American Journal of Family Law 1999, Vol.13, 215-225, 220.

Uniform Laws – An Uniform Laws – An Explanation Explanation

Drafted by the Uniform Law Drafted by the Uniform Law CommissionCommission

NM Commissioners are:NM Commissioners are: Burton, John P. Burton, John P.

Cervantes, JosephCervantes, JosephDesiderio, Robert J. Desiderio, Robert J. Foy, Sr., Thomas P. Foy, Sr., Thomas P. Larragoite, Philip P. Larragoite, Philip P. McSorley, CiscoMcSorley, CiscoSanchez, Raymond G.Sanchez, Raymond G.Tackett, Paula Tackett, Paula

Uniform Law Drafting Uniform Law Drafting ProcessProcess

Proposal for uniform law is assigned Proposal for uniform law is assigned to study committeeto study committee

Then drafting committee is Then drafting committee is appointedappointed

Academic reporter is selectedAcademic reporter is selected Observers are invited from a wide Observers are invited from a wide

area of possible interestsarea of possible interests

Drafting Process, Part 2Drafting Process, Part 2

Drafting meetings held several timesDrafting meetings held several times Act is read twice in full at the annual Act is read twice in full at the annual

meetingmeeting Sent to American Bar Association for Sent to American Bar Association for

endorsementendorsement Sent to the states for enactmentSent to the states for enactment

Purpose of UCLAPurpose of UCLA

Purpose of UCLAPurpose of UCLA Uniformity and Standardization -Uniformity and Standardization -

Protection of the consumerProtection of the consumer


Protection of the consumerProtection of the consumer Contractual and VoluntaryContractual and Voluntary


Protection of the consumerProtection of the consumer Contractual and VoluntaryContractual and Voluntary Court enforcement without separate Court enforcement without separate

breach of contractbreach of contract


Protection of the consumerProtection of the consumer Contractual and VoluntaryContractual and Voluntary Court enforcement without separate Court enforcement without separate

breach of contractbreach of contract Provides minimum terms for Provides minimum terms for

collaborative participation collaborative participation agreementagreement


Clarification of when process begins Clarification of when process begins and when it endsand when it ends


Clarification of when process begins Clarification of when process begins and when it endsand when it ends

Clarification of how to use the Clarification of how to use the collaborative process when there is collaborative process when there is an action pending in courtan action pending in court


Extends the disqualification Extends the disqualification agreement to matters “substantially agreement to matters “substantially related”related”



Requirement that lawyers disclose Requirement that lawyers disclose benefits and risks so there may be benefits and risks so there may be informed consentinformed consent



Requirement that lawyers disclose Requirement that lawyers disclose benefits and risks so there may be benefits and risks so there may be informed consentinformed consent

Creates obligation to screen for Creates obligation to screen for Domestic ViolenceDomestic Violence

Purpose of UCLAPurpose of UCLA The imputed disqualification is The imputed disqualification is

relaxed for low income partiesrelaxed for low income parties


relaxed for low income partiesrelaxed for low income parties Reasonable expectation for parties Reasonable expectation for parties

and attorneys for confidentiality by and attorneys for confidentiality by creating an evidentiary privilegecreating an evidentiary privilege


relaxed for low income partiesrelaxed for low income parties Reasonable expectation for parties Reasonable expectation for parties

and attorneys for confidentiality by and attorneys for confidentiality by creating an evidentiary privilegecreating an evidentiary privilege

Acknowledges that the standards for Acknowledges that the standards for professional responsibility and child professional responsibility and child abuse reporting still applyabuse reporting still apply

Collaborative Law and Collaborative Law and Professional ResponsibilityProfessional Responsibility

The limited scope of representation The limited scope of representation provided by collaborative lawyers is provided by collaborative lawyers is consistent with standards of consistent with standards of professional responsibility for lawyersprofessional responsibility for lawyers


Kentucky Bar AssociationKentucky Bar Association


Kentucky Bar AssociationKentucky Bar Association New Jersey Advisory Committee on New Jersey Advisory Committee on

Professional EthicsProfessional Ethics



Professional EthicsProfessional Ethics North Carolina State Bar AssociationNorth Carolina State Bar Association



Professional EthicsProfessional Ethics North Carolina State Bar AssociationNorth Carolina State Bar Association Pennsylvania Bar AssociationPennsylvania Bar Association


Colorado ??Colorado ??


ColoradoColorado

When collaborative Lawyers sign a collaborative When collaborative Lawyers sign a collaborative law participation agreement with parties, they law participation agreement with parties, they assume contractual duties to other parties assume contractual duties to other parties besides their client, creating an intolerable besides their client, creating an intolerable conflict of interestconflict of interest


The American Bar Association OpinionThe American Bar Association Opinion



Specifically rejects the Colorado ethics opinionSpecifically rejects the Colorado ethics opinion




Collaborative law is permissible limited scope Collaborative law is permissible limited scope representationrepresentation




Collaborative law is permissible limited scope Collaborative law is permissible limited scope representationrepresentation

The disqualification agreement is “not an The disqualification agreement is “not an agreement that impairs her ability to represent agreement that impairs her ability to represent the client, but rather is consistent with the the client, but rather is consistent with the client’s limited goals for the representation”client’s limited goals for the representation”




Collaborative law is permissible limited scope representationCollaborative law is permissible limited scope representation

The disqualification agreement is “not an agreement that The disqualification agreement is “not an agreement that impairs her ability to represent the client, but rather is impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the consistent with the client’s limited goals for the representation”representation”

““If the client has given his or her informed consent, the If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law lawyer may represent the client in the collaborative law process.”process.”

Collaborative Law Collaborative Law Communications and Communications and Evidentiary PrivilegeEvidentiary Privilege


Protection for confidentiality of Protection for confidentiality of communications is central to collaborative communications is central to collaborative lawlaw



Encourage frank communicationEncourage frank communication



Encourage frank communicationEncourage frank communication

Communication by any participant blocked Communication by any participant blocked in courtin court


What if collaborative law communications What if collaborative law communications are disclosed to family members, business are disclosed to family members, business associates or the general public?associates or the general public?



Protections for confidentiality only apply to Protections for confidentiality only apply to legal proceedingslegal proceedings



Protections for confidentiality only apply to Protections for confidentiality only apply to legal proceedings…..but…..legal proceedings…..but…..


Protections for confidentiality only apply Protections for confidentiality only apply to legal proceedings…..but…..to legal proceedings…..but…..



the participation agreements can adress the participation agreements can adress disclosures to the publicdisclosures to the public



the participation agreements can adress the participation agreements can adress disclosures to the publicdisclosures to the public

ethical standards also apply ethical standards also apply

Uniform Collaborative Law Act Uniform Collaborative Law Act and Domestic Violenceand Domestic Violence


Domestic victim’s rights organizations believe Domestic victim’s rights organizations believe Collaborative Law is not appropriate because of Collaborative Law is not appropriate because of the inherent power imbalances in domestic the inherent power imbalances in domestic violenceviolence



The UCLA has mandatory screening The UCLA has mandatory screening requirementsrequirements



The UCLA has mandatory screening requirementsThe UCLA has mandatory screening requirements

There is an exception to the rule that lawyers There is an exception to the rule that lawyers cannot appear in court, when there has been an cannot appear in court, when there has been an act of domestic violence and a client needs an act of domestic violence and a client needs an order of protectionorder of protection

The collaborative process is The collaborative process is terminated:terminated:

What should be provided to What should be provided to successor litigation counsel;successor litigation counsel;

What can be provided to successor What can be provided to successor litigation counsellitigation counsel

The collaborative process is The collaborative process is terminated:terminated:

Gretchen’s client wants Gretchen to Gretchen’s client wants Gretchen to be a consultant to her and to her be a consultant to her and to her litigation counsel stating:litigation counsel stating:

““You won’t have to appear in You won’t have to appear in court…”court…”

Hypothetical:Hypothetical:

It is a collaborative caseIt is a collaborative case Gretchen represents husband;Gretchen represents husband; Harry represents wife;Harry represents wife; Gretchen find’s out her client has lied Gretchen find’s out her client has lied

about a material fact of the caseabout a material fact of the case Should she terminate or withdraw?Should she terminate or withdraw?

Hypothetical:Hypothetical: Gretchen represents Wife.Gretchen represents Wife. Harry represents Husband.Harry represents Husband. The collaborative process terminates.The collaborative process terminates. The parties mutually agree that they each The parties mutually agree that they each

want Gretchen and Harry to represent want Gretchen and Harry to represent them in litigation.them in litigation.

Can the collaborative lawyers represent Can the collaborative lawyers represent the parties in litigation, if the parties agree the parties in litigation, if the parties agree to it?to it?

the uniform collaborative law act gretchen m. walther, esq. harry l. tindall, esq

Documents

consumer slide

voluntary slide

standardization protection

consumer uniformity

purpose of ucla slide

consumer contractual

paula slide

enactment slide