Bill Amendment: FL S1190 | 2014 | Regular Session

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: Family Law

Status: 2014-05-02 - Died on Calendar [S1190 Detail]

Download: Florida-2014-S1190-Senate_Committee_Amendment_559024.html

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       Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. SB 1190
       
       
       
       
       
       
                                Ì559024!Î559024                         
       
                              LEGISLATIVE ACTION                        
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       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. The Legislature finds and declares that the
    6  purpose of this part is to:
    7         (1) Create a system of practice of a collaborative law
    8  process for proceedings under chapters 61 and 742, Florida
    9  Statutes.
   10         (2) Encourage the peaceful resolution of disputes and the
   11  early settlement of pending litigation through voluntary
   12  settlement procedures.
   13         (3) Preserve the working relationship between parties to a
   14  dispute through a nonadversarial method that reduces the
   15  emotional and financial toll of litigation.
   16         Section 2. Part III of chapter 61, Florida Statutes,
   17  consisting of ss. 61.55-61.58, is created and entitled the
   18  “Collaborative Law Act.”
   19         Section 3. Section 61.55, Florida Statutes, is created to
   20  read:
   21         61.55 Purpose.—The purpose of this part is to create a
   22  uniform system of practice for the collaborative law process in
   23  this state. It is the policy of this state to encourage the
   24  peaceful resolution of disputes and the early settlement of
   25  pending litigation through a voluntary settlement process. The
   26  collaborative law process is a unique nonadversarial process
   27  that preserves a working relationship between the parties and
   28  reduces the emotional and financial toll of litigation.
   29         Section 4. Section 61.56, Florida Statutes, is created to
   30  read:
   31         61.56 Definitions.—As used in this part, the term:
   32         (1) “Collaborative attorney” means an attorney who
   33  represents a party in a collaborative law process.
   34         (2) “Collaborative law communication” means an oral or
   35  written statement, including a statement made in a record, or
   36  nonverbal conduct, which:
   37         (a) Is made in the conduct of or in the course of
   38  participating in, continuing, or reconvening a collaborative law
   39  process; or
   40         (b) Occurs after the parties sign a collaborative law
   41  participation agreement and before the collaborative law process
   42  is concluded.
   43         (3) “Collaborative law participation agreement” means an
   44  agreement between persons to participate in a collaborative law
   45  process.
   46         (4) “Collaborative law process” means a process intended to
   47  resolve a collaborative matter without intervention by a
   48  tribunal in which persons sign a collaborative law participation
   49  agreement and are represented by collaborative attorneys.
   50         (5) “Collaborative matter” means a dispute, transaction,
   51  claim, problem, or issue for resolution including a dispute,
   52  claim, or issue in a proceeding that is described in a
   53  collaborative law participation agreement and arises under
   54  chapter 61 or chapter 742, including, but not limited to:
   55         (a) Marriage, divorce, dissolution, annulment, and marital
   56  property distribution.
   57         (b) Child custody, visitation, parenting plans, and
   58  parenting time.
   59         (c) Alimony, maintenance, and child support.
   60         (d) Parental relocation with a child.
   61         (e) Parentage.
   62         (f) Premarital, marital, and postmarital agreements.
   63         (6) “Law firm” means:
   64         (a) An attorney or attorneys who practice law in a
   65  partnership, professional corporation, sole proprietorship,
   66  limited liability company, or association; or
   67         (b) An attorney or attorneys employed in a legal services
   68  organization, the legal department of a corporation or other
   69  organization, or the legal department of a governmental entity,
   70  subdivision, agency, or instrumentality.
   71         (7) “Nonparty participant” means a person, other than a
   72  party and the party’s collaborative attorney, who participates
   73  in a collaborative law process.
   74         (8) “Party” means a person who signs a collaborative law
   75  participation agreement and whose consent is necessary to
   76  resolve a collaborative matter.
   77         (9) “Person” means an individual; a corporation; a business
   78  trust; estate; trust; partnership; a limited liability company;
   79  association; joint venture; public corporation; a government or
   80  governmental subdivision, agency, or instrumentality; or any
   81  other legal or commercial entity.
   82         (10) “Proceeding” means a judicial, administrative,
   83  arbitral, or other adjudicative process before a tribunal,
   84  including related prehearing and posthearing motions,
   85  conferences, and discovery.
   86         (11) “Prospective party” means a person who discusses with
   87  a prospective collaborative attorney the possibility of signing
   88  a collaborative law participation agreement.
   89         (12) “Record” means information that is inscribed on a
   90  tangible medium or that is stored in an electronic or other
   91  medium and is retrievable in perceivable form.
   92         (13) “Related to a collaborative matter” means involving
   93  the same parties, transaction or occurrence, nucleus of
   94  operative fact, dispute, claim, or issue as the collaborative
   95  matter.
   96         (14) “Sign” means, with present intent to authenticate or
   97  adopt a record:
   98         (a) To execute or adopt a tangible symbol; or
   99         (b) To attach to or logically associate with the record an
  100  electronic symbol, sound, or process.
  101         (15) “Tribunal” means a court, arbitrator, administrative
  102  agency, or other body acting in an adjudicative capacity that,
  103  after presentation of evidence or legal argument, has
  104  jurisdiction to render a decision affecting a party’s interests
  105  in a matter.
  106         Section 5. Section 61.57, Florida Statutes, is created to
  107  read:
  108         61.57 Beginning and concluding a collaborative law
  109  process.—
  110         (1) The collaborative law process commences, regardless of
  111  whether a legal proceeding is pending, when the parties enter
  112  into a collaborative participation agreement.
  113         (2) A tribunal may not order a party to participate in a
  114  collaborative law process over that party’s objection.
  115         (3) A collaborative law process is concluded by a:
  116         (a) Resolution of a collaborative matter as evidenced by a
  117  signed record;
  118         (b) Resolution of a part of the collaborative matter,
  119  evidenced by a signed record, in which the parties agree that
  120  the remaining parts of the collaborative matter will not be
  121  resolved in the process; or
  122         (c) Termination of the process.
  123         (4) A collaborative law process terminates when a party:
  124         (a) Gives notice to other parties in a record that the
  125  collaborative law process is concluded;
  126         (b) Begins a proceeding related to a collaborative matter
  127  without the agreement of all parties;
  128         (c) Initiates a pleading, motion, order to show cause, or
  129  request for a conference with a tribunal in a pending proceeding
  130  related to the collaborative matter;
  131         (d) Requests that the proceeding be put on the tribunal’s
  132  active calendar in a pending proceeding related to the
  133  collaborative matter;
  134         (e) Takes similar action requiring notice to be sent to the
  135  parties in a pending proceeding related to the collaborative
  136  matter; or
  137         (f) Discharges a collaborative attorney or a collaborative
  138  attorney withdraws from further representation of a party,
  139  except as otherwise provided by subsection (7).
  140         (5) A party’s collaborative attorney shall give prompt
  141  notice to all other parties in a record of a discharge or
  142  withdrawal.
  143         (6) A party may terminate a collaborative law process with
  144  or without cause.
  145         (7) Notwithstanding the discharge or withdrawal of a
  146  collaborative attorney, a collaborative law process continues
  147  if, not later than 30 days after the date that the notice of the
  148  discharge or withdrawal of a collaborative attorney required by
  149  subsection (5) is sent to the parties:
  150         (a) The unrepresented party engages a successor
  151  collaborative attorney;
  152         (b) The parties consent to continue the collaborative law
  153  process by reaffirming the collaborative law participation
  154  agreement in a signed record;
  155         (c) The collaborative law participation agreement is
  156  amended to identify the successor collaborative attorney in a
  157  signed record; and
  158         (d) The successor collaborative attorney confirms the
  159  attorney’s representation of a party in the collaborative law
  160  participation agreement in a signed record.
  161         (8) A collaborative law process does not conclude if, with
  162  the consent of the parties, a party requests a tribunal to
  163  approve a resolution of the collaborative matter or any part
  164  thereof as evidenced by a signed record.
  165         (9) A collaborative law participation agreement may provide
  166  additional methods for concluding a collaborative law process.
  167         Section 6. Section 61.58, Florida Statutes, is created to
  168  read:
  169         61.58 Confidentiality of a collaborative law
  170  communication.—Except as provided in this section, a
  171  collaborative law communication is confidential to the extent
  172  agreed by the parties in a signed record or as otherwise
  173  provided by law.
  174         (1) PRIVILEGE AGAINST DISCLOSURE FOR COLLABORATIVE LAW
  175  COMMUNICATION; ADMISSIBILITY; DISCOVERY.—
  176         (a) Subject to subsections (2) and (3), a collaborative law
  177  communication is privileged as provided under paragraph (b), is
  178  not subject to discovery, and is not admissible into evidence.
  179         (b) In a proceeding, the following privileges apply:
  180         1. A party may refuse to disclose, and may prevent another
  181  person from disclosing, a collaborative law communication.
  182         2. A nonparty participant may refuse to disclose, and may
  183  prevent another person from disclosing, a collaborative law
  184  communication of a nonparty participant.
  185         (c) Evidence or information that is otherwise admissible or
  186  subject to discovery does not become inadmissible or protected
  187  from discovery solely because of its disclosure or use in a
  188  collaborative law process.
  189         (2) WAIVER AND PRECLUSION OF PRIVILEGE.—
  190         (a) A privilege under subsection (1) may be waived orally
  191  or in a record during a proceeding if it is expressly waived by
  192  all parties and, in the case of the privilege of a nonparty
  193  participant, if it is expressly waived by the nonparty
  194  participant.
  195         (b) A person who makes a disclosure or representation about
  196  a collaborative law communication that prejudices another person
  197  in a proceeding may not assert a privilege under subsection (1).
  198  This preclusion applies only to the extent necessary for the
  199  person prejudiced to respond to the disclosure or
  200  representation.
  201         (3) LIMITS OF PRIVILEGE.—
  202         (a) A privilege under subsection (1) does not apply for a
  203  collaborative law communication that is:
  204         1. Available to the public under chapter 119 or made during
  205  a session of a collaborative law process that is open, or is
  206  required by law to be open, to the public;
  207         2. A threat or statement of a plan to inflict bodily injury
  208  or commit a crime of violence;
  209         3. Intentionally used to plan a crime, commit or attempt to
  210  commit a crime, or conceal an ongoing crime or ongoing criminal
  211  activity; or
  212         4. In an agreement resulting from the collaborative law
  213  process, as evidenced by a record signed by all parties to the
  214  agreement.
  215         (b) The privilege under subsection (1) for a collaborative
  216  law communication does not apply to the extent that such
  217  communication is:
  218         1. Sought or offered to prove or disprove a claim or
  219  complaint of professional misconduct or malpractice arising from
  220  or related to a collaborative law process; or
  221         2. Sought or offered to prove or disprove abuse, neglect,
  222  abandonment, or exploitation of a child or adult unless the
  223  Department of Children and Families is a party to or otherwise
  224  participates in the process.
  225         (c) A privilege under subsection (1) does not apply if a
  226  tribunal finds, after a hearing in camera, that the party
  227  seeking discovery or the proponent of the evidence has shown
  228  that the evidence is not otherwise available, the need for the
  229  evidence substantially outweighs the interest in protecting
  230  confidentiality, and the collaborative law communication is
  231  sought or offered in:
  232         1. A court proceeding involving a felony; or
  233         2. A proceeding seeking rescission or reformation of a
  234  contract arising out of the collaborative law process or in
  235  which a defense is asserted to avoid liability on the contract.
  236         (d) If a collaborative law communication is subject to an
  237  exception under paragraph (b) or paragraph (c), only the part of
  238  the communication necessary for the application of the exception
  239  may be disclosed or admitted.
  240         (e) Disclosure or admission of evidence excepted from the
  241  privilege under paragraph (b) or paragraph (c) does not make the
  242  evidence or any other collaborative law communication
  243  discoverable or admissible for any other purpose.
  244         (f) The privilege under subsection (1) does not apply if
  245  the parties agree in advance in a signed record, or if a record
  246  of a proceeding reflects agreement by the parties, that all or
  247  part of a collaborative law process is not privileged. This
  248  paragraph does not apply to a collaborative law communication
  249  made by a person who did not receive actual notice of the
  250  collaborative participation agreement before the communication
  251  was made.
  252         Section 7. Sections 61.55-61.58, Florida Statutes, as
  253  created by this act, shall not take effect until 30 days after
  254  approval and publication by the Florida Supreme Court of:
  255         (1) The Rules of Professional Conduct, governing:
  256         (a) The mandatory disqualification of a collaborative
  257  attorney, and attorneys in the same law firm, from appearing
  258  before a tribunal to represent a party to a collaborative law
  259  process in a proceeding related to the collaborative law matter.
  260         (b) Limited exceptions to mandatory disqualification to
  261  seek emergency orders for the protection of the health, safety,
  262  welfare, or interest of a party until such time as a successor
  263  collaborative attorney is available and for continued
  264  representation of government entities, subject to certain
  265  conditions.
  266         (2) The Family Law Rules of Procedure, governing:
  267         (a) Required elements of a collaborative law participation
  268  agreement defining the commencement, procedures, and termination
  269  of the collaborative law process.
  270         (b) The stay of ongoing proceedings upon referral to a
  271  collaborative law process and related status reports.
  272  Section 8. Except as otherwise expressly provided in this act,
  273  this act shall take effect July 1, 2014.
  274  
  275  ================= T I T L E  A M E N D M E N T ================
  276  And the title is amended as follows:
  277         Delete everything before the enacting clause
  278  and insert:
  279                        A bill to be entitled                      
  280         An act relating to family law; providing legislative
  281         findings; creating Part III of ch. 61, F.S., entitled
  282         the “Collaborative Law Act”; creating s. 61.55, F.S.;
  283         declaring the purpose of the act; creating s. 61.56,
  284         F.S.; defining terms; creating s. 61.57, F.S.;
  285         declaring that a collaborative law process commences
  286         when the parties enter into a collaborative
  287         participation agreement; providing that a tribunal may
  288         not order a party to participate in a collaborative
  289         law process over the party’s objection; providing
  290         conditions under which a collaborative law process is
  291         concluded; creating s. 61.58, F.S.; providing for
  292         confidentiality of communications made during the
  293         collaborative law process; providing exceptions;
  294         providing that the effective date of specified
  295         provisions are contingent upon approval and
  296         publication of Florida Supreme Court rules governing
  297         specified subjects; providing effective dates.