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| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB1029 Introduced , by Rep. Robyn Gabel SYNOPSIS AS INTRODUCED:
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Creates the Uniform Collaborative Law Act. Defines terms. Provides that the provisions of the Act are applicable to collaborative law participation agreements that meet the requirements of the Act signed on or after the effective date of the Act. Contains provisions concerning: requirements of collaborative law agreements; the beginning and conclusion of the collaborative law process; proceedings before a tribunal; disqualification of collaborative lawyers; disclosure of information; standards of professional responsibility and mandatory reporting; procedures for protecting parties from violent or coercive behavior; confidentiality; privileges; the authority of a tribunal if a collaborative agreement does not meet the requirements of the Act; uniformity of application and construction; and the Act's relation to the federal Electronic Signatures in Global and National Commerce Act.
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| | A BILL FOR |
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1 | | AN ACT concerning civil law.
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2 | | Be it enacted by the People of the State of Illinois,
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3 | | represented in the General Assembly:
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4 | | Section 1. Short title. This Act may be cited as the |
5 | | Uniform Collaborative Law Act.
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6 | | Section 2. Definitions. In this Act: |
7 | | (1) "Collaborative law communication" means a statement, |
8 | | whether oral or in a record, or verbal or nonverbal, that: |
9 | | (A) is made to conduct, participate in, continue, or |
10 | | reconvene a collaborative law process; and |
11 | | (B) occurs after the parties sign a collaborative law |
12 | | participation agreement and before the collaborative law |
13 | | process is concluded. |
14 | | (2) "Collaborative law participation agreement" means an |
15 | | agreement by persons to participate in a collaborative law |
16 | | process. |
17 | | (3) "Collaborative law process" means a procedure intended |
18 | | to resolve a collaborative matter without intervention by a |
19 | | tribunal in which persons: |
20 | | (A) sign a collaborative law participation agreement; |
21 | | and |
22 | | (B) are represented by collaborative lawyers. |
23 | | (4) "Collaborative lawyer" means a lawyer who represents a |
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1 | | party in a collaborative law process. |
2 | | (5) "Collaborative matter" means a dispute, transaction, |
3 | | claim, problem, or issue for resolution, including a dispute, |
4 | | claim, or issue in a proceeding, which is described in a |
5 | | collaborative law participation agreement and arises under the |
6 | | family or domestic relations law of this State, including: |
7 | | (A) marriage, divorce, dissolution, annulment, and |
8 | | property distribution; |
9 | | (B) child custody, visitation, and parenting time; |
10 | | (C) alimony, maintenance, and child support; |
11 | | (D) adoption; |
12 | | (E) parentage; and |
13 | | (F) premarital, marital, and post-marital agreements. |
14 | | (6) "Law firm" means: |
15 | | (A) lawyers who practice law together in a partnership, |
16 | | professional corporation, sole proprietorship, limited |
17 | | liability company, or association; and |
18 | | (B) lawyers employed in a legal services organization, |
19 | | or the legal department of a corporation or other |
20 | | organization, or the legal department of a government or |
21 | | governmental subdivision, agency, or instrumentality. |
22 | | (7) "Nonparty participant" means a person, other than a |
23 | | party and the party's collaborative lawyer, that participates |
24 | | in a collaborative law process. |
25 | | (8) "Party" means a person that signs a collaborative law |
26 | | participation agreement and whose consent is necessary to |
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1 | | resolve a collaborative matter. |
2 | | (9) "Person" means an individual, corporation, business |
3 | | trust, estate, trust, partnership, limited liability company, |
4 | | association, joint venture, public corporation, government or |
5 | | governmental subdivision, agency, or instrumentality, or any |
6 | | other legal or commercial entity.
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7 | | (10) "Proceeding" means: |
8 | | (A) a judicial, administrative, arbitral, or other |
9 | | adjudicative process before a tribunal, including related |
10 | | prehearing and post-hearing motions, conferences, and |
11 | | discovery; or |
12 | | (B) a legislative hearing or similar process. |
13 | | (11) "Prospective party" means a person that discusses with |
14 | | a prospective collaborative lawyer the possibility of signing a |
15 | | collaborative law participation agreement. |
16 | | (12) "Record" means information that is inscribed on a |
17 | | tangible medium or that is stored in an electronic or other |
18 | | medium and is retrievable in perceivable form. |
19 | | (13) "Related to a collaborative matter" means involving |
20 | | the same parties, transaction or occurrence, nucleus of |
21 | | operative fact, dispute, claim, or issue as the collaborative |
22 | | matter. |
23 | | (14) "Sign" means, with present intent to authenticate or |
24 | | adopt a record: |
25 | | (A) to execute or adopt a tangible symbol; or |
26 | | (B) to attach to or logically associate with the record |
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1 | | an electronic symbol, sound, or process. |
2 | | (15) "Tribunal" means: |
3 | | (A) a court, arbitrator, administrative agency, or |
4 | | other body acting in an adjudicative capacity which, after |
5 | | presentation of evidence or legal argument, has |
6 | | jurisdiction to render a decision affecting a party's |
7 | | interests in a matter; or |
8 | | (B) a legislative body conducting a hearing or similar |
9 | | process.
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10 | | Section 3. Applicability. This Act applies to a |
11 | | collaborative law participation agreement that meets the |
12 | | requirements of Section 4 signed on or after the effective date |
13 | | of this Act.
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14 | | Section 4. Collaborative law participation agreement; |
15 | | requirements. |
16 | | (a) A collaborative law participation agreement must: |
17 | | (1) be in a record; |
18 | | (2) be signed by the parties; |
19 | | (3) state the parties' intention to resolve a |
20 | | collaborative matter through a collaborative law process |
21 | | under this Act; |
22 | | (4) describe the nature and scope of the matter; |
23 | | (5) identify the collaborative lawyer who represents |
24 | | each party in the process; and |
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1 | | (6) contain a statement by each collaborative lawyer |
2 | | confirming the lawyer's representation of a party in the |
3 | | collaborative law process. |
4 | | (b) Parties may agree to include in a collaborative law |
5 | | participation agreement additional provisions not inconsistent |
6 | | with this Act.
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7 | | Section 5. Beginning and concluding collaborative law |
8 | | process.
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9 | | (a) A collaborative law process begins when the parties |
10 | | sign a collaborative law participation agreement. |
11 | | (b) A tribunal may not order a party to participate in a |
12 | | collaborative law process over that party's objection. |
13 | | (c) A collaborative law process is concluded by a: |
14 | | (1) resolution of a collaborative matter as evidenced |
15 | | by a signed record; |
16 | | (2) resolution of a part of the collaborative matter, |
17 | | evidenced by a signed record, in which the parties agree |
18 | | that the remaining parts of the matter will not be resolved |
19 | | in the process; or |
20 | | (3) termination of the process. |
21 | | (d) A collaborative law process terminates: |
22 | | (1) when a party gives notice to other parties in a |
23 | | record that the process is ended; |
24 | | (2) when a party: |
25 | | (A) begins a proceeding related to a collaborative |
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1 | | matter without the agreement of all parties; or |
2 | | (B) in a pending proceeding related to the matter: |
3 | | (i) initiates a pleading, motion, order to |
4 | | show cause, or request for a conference with the |
5 | | tribunal; |
6 | | (ii) requests that the proceeding be put on the |
7 | | tribunal's active calendar; or |
8 | | (iii) takes similar action requiring notice to |
9 | | be sent to the parties; or |
10 | | (3) except as otherwise provided by subsection (g), |
11 | | when a party discharges a collaborative lawyer or a |
12 | | collaborative lawyer withdraws from further representation |
13 | | of a party. |
14 | | (e) A party's collaborative lawyer shall give prompt notice |
15 | | to all other parties in a record of a discharge or withdrawal. |
16 | | (f) A party may terminate a collaborative law process with |
17 | | or without cause. |
18 | | (g) Notwithstanding the discharge or withdrawal of a |
19 | | collaborative lawyer, a collaborative law process continues, |
20 | | if not later than 30 days after the date that the notice of the |
21 | | discharge or withdrawal of a collaborative lawyer required by |
22 | | subsection (e) is sent to the parties: |
23 | | (1) the unrepresented party engages a successor |
24 | | collaborative lawyer; and |
25 | | (2) in a signed record: |
26 | | (A) the parties consent to continue the process by |
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1 | | reaffirming the collaborative law participation |
2 | | agreement; |
3 | | (B) the agreement is amended to identify the |
4 | | successor collaborative lawyer; and
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5 | | (C) the successor collaborative lawyer confirms |
6 | | the lawyer's representation of a party in the |
7 | | collaborative process. |
8 | | (h) A collaborative law process does not conclude if, with |
9 | | the consent of the parties, a party requests a tribunal to |
10 | | approve a resolution of the collaborative matter or any part |
11 | | thereof as evidenced by a signed record. |
12 | | (i) A collaborative law participation agreement may |
13 | | provide additional methods of concluding a collaborative law |
14 | | process.
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15 | | Section 6. Proceedings pending before tribunal; status |
16 | | report.
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17 | | (a) Persons in a proceeding pending before a tribunal may |
18 | | sign a collaborative law participation agreement to seek to |
19 | | resolve a collaborative matter related to the proceeding. The |
20 | | parties shall file promptly with the tribunal a notice of the |
21 | | agreement after it is signed. Subject to subsection (c) and |
22 | | Sections 7 and 8, the filing operates as an application for a |
23 | | stay of the proceeding.
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24 | | (b) The parties shall file promptly with the tribunal |
25 | | notice in a record when a collaborative law process concludes. |
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1 | | The stay of the proceeding under subsection (a) is lifted when |
2 | | the notice is filed. The notice may not specify any reason for |
3 | | termination of the process. |
4 | | (c) A tribunal in which a proceeding is stayed under |
5 | | subsection (a) may require the parties and collaborative |
6 | | lawyers to provide a status report on the collaborative law |
7 | | process and the proceeding. A status report may include only |
8 | | information on whether the process is ongoing or concluded. It |
9 | | may not include a report, assessment, evaluation, |
10 | | recommendation, finding, or other communication regarding a |
11 | | collaborative law process or collaborative law matter. |
12 | | (d) A tribunal may not consider a communication made in |
13 | | violation of subsection (c). |
14 | | (e) A tribunal shall provide parties notice and an |
15 | | opportunity to be heard before dismissing a proceeding in which |
16 | | a notice of collaborative process is filed based on delay or |
17 | | failure to prosecute.
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18 | | Section 7. Emergency order. During a collaborative law |
19 | | process, a tribunal may issue emergency orders to protect the |
20 | | health, safety, welfare, or interest of a party or person |
21 | | identified as protected in Section 201 of the Illinois Domestic |
22 | | Violence Act of 1986.
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23 | | Section 8. Approval of agreement by tribunal. A tribunal |
24 | | may approve an agreement resulting from a collaborative law |
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1 | | process.
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2 | | Section 9. Disqualification of collaborative lawyer and |
3 | | lawyers in associated law firm.
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4 | | (a) Except as otherwise provided in subsection (c), a |
5 | | collaborative lawyer is disqualified
from appearing before a |
6 | | tribunal to represent a party in a proceeding related to the |
7 | | collaborative matter. |
8 | | (b) Except as otherwise provided in subsection (c) and |
9 | | Sections 10 and 11, a lawyer in a law firm with which the |
10 | | collaborative lawyer is associated is disqualified from |
11 | | appearing before a tribunal to represent a party in a |
12 | | proceeding related to the collaborative matter if the |
13 | | collaborative lawyer is disqualified from doing so under |
14 | | subsection (a). |
15 | | (c) A collaborative lawyer or a lawyer in a law firm with |
16 | | which the collaborative lawyer is associated may represent a |
17 | | party: |
18 | | (1) to ask a tribunal to approve an agreement resulting |
19 | | from the collaborative law process; or
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20 | | (2) to seek or defend an emergency order to protect the |
21 | | health, safety, welfare, or interest of a party or person |
22 | | identified in Section 201 of the Illinois Domestic Violence |
23 | | Act of 1986 if a successor lawyer is not immediately |
24 | | available to represent that person. |
25 | | (d) If subsection (c)(2) applies, a collaborative lawyer, |
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1 | | or lawyer in a law firm with which the collaborative lawyer is |
2 | | associated, may represent a party or person identified in |
3 | | Section 201 of the Illinois Domestic Violence Act of 1986 only |
4 | | until the person is represented by a successor lawyer or |
5 | | reasonable measures are taken to protect the health, safety, |
6 | | welfare, or interest of the person.
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7 | | Section 10. Low income parties.
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8 | | (a) The disqualification of Section 9(a) applies to a |
9 | | collaborative lawyer representing a party with or without fee.
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10 | | (b) After a collaborative law process concludes, another |
11 | | lawyer in a law firm with which a collaborative lawyer |
12 | | disqualified under Section 9(a) is associated may represent a |
13 | | party without fee in the collaborative matter or a matter |
14 | | related to the collaborative matter if: |
15 | | (1) the party has an annual income that qualifies the |
16 | | party for free legal representation under the criteria |
17 | | established by the law firm for free legal representation; |
18 | | (2) the collaborative law participation agreement so |
19 | | provides; and |
20 | | (3) the collaborative lawyer is isolated from any |
21 | | participation in the collaborative matter or a matter |
22 | | related to the collaborative matter through procedures |
23 | | within the law firm which are reasonably calculated to |
24 | | isolate the collaborative lawyer from such participation.
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1 | | Section 11. Governmental entity as party.
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2 | | (a) The disqualification of Section 9(a) applies to a |
3 | | collaborative lawyer representing a party that is a government |
4 | | or governmental subdivision, agency, or instrumentality. |
5 | | (b) After a collaborative law process concludes, another |
6 | | lawyer in a law firm with which the collaborative lawyer is |
7 | | associated may represent a government or governmental |
8 | | subdivision, agency, or instrumentality in the collaborative |
9 | | matter or a matter related to the collaborative matter if: |
10 | | (1) the collaborative law participation agreement so |
11 | | provides; and |
12 | | (2) the collaborative lawyer is isolated from any |
13 | | participation in the collaborative matter or a matter |
14 | | related to the collaborative matter through procedures |
15 | | within the law firm which are reasonably calculated to |
16 | | isolate the collaborative lawyer from such participation.
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17 | | Section 12. Disclosure of information. Except as provided |
18 | | by law other than this Act, during the collaborative law |
19 | | process, on the request of another party, a party shall make |
20 | | timely, full, candid, and informal disclosure of information |
21 | | related to the collaborative matter without formal discovery. A |
22 | | party also shall update promptly previously disclosed |
23 | | information that has materially changed. The parties may define |
24 | | the scope of disclosure during the collaborative law process.
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1 | | Section 13. Standards of professional responsibility and |
2 | | mandatory reporting not affected. This Act does not affect:
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3 | | (1) the professional responsibility obligations and |
4 | | standards applicable to a lawyer or other licensed |
5 | | professional; or
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6 | | (2) the obligation of a person to report abuse or |
7 | | neglect, abandonment, or exploitation of a child or adult |
8 | | under the law of this State.
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9 | | Section 14. Appropriateness of collaborative law process. |
10 | | Before a prospective party signs a collaborative law |
11 | | participation agreement, a prospective collaborative lawyer |
12 | | shall: |
13 | | (1) assess with the prospective party factors the |
14 | | lawyer reasonably believes relate to whether a |
15 | | collaborative law process is appropriate for the |
16 | | prospective party's matter; |
17 | | (2) provide the prospective party with information |
18 | | that the lawyer reasonably believes is sufficient for the |
19 | | party to make an informed decision about the material |
20 | | benefits and risks of a collaborative law process as |
21 | | compared to the material benefits and risks of other |
22 | | reasonably available alternatives for resolving the |
23 | | proposed collaborative matter, such as litigation, |
24 | | mediation, arbitration, or expert evaluation; and |
25 | | (3) advise the prospective party that: |
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1 | | (A) after signing an agreement if a party initiates |
2 | | a proceeding or seeks tribunal intervention in a |
3 | | pending proceeding related to the collaborative |
4 | | matter, the collaborative law process terminates; |
5 | | (B) participation in a collaborative law process |
6 | | is voluntary and any party has the right to terminate |
7 | | unilaterally a collaborative law process with or |
8 | | without cause; and |
9 | | (C) the collaborative lawyer and any lawyer in a |
10 | | law firm with which the collaborative lawyer is |
11 | | associated may not appear before a tribunal to |
12 | | represent a party in a proceeding related to the |
13 | | collaborative matter, except as authorized by Section |
14 | | 9(c), 10(b), or 11(b).
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15 | | Section 15. Coercive or violent relationship.
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16 | | (a) Before a prospective party signs a collaborative law |
17 | | participation agreement, a prospective collaborative lawyer |
18 | | shall make reasonable inquiry whether the prospective party has |
19 | | a history of a coercive or violent relationship with another |
20 | | prospective party. |
21 | | (b) Throughout a collaborative law process, a |
22 | | collaborative lawyer reasonably and continuously shall assess |
23 | | whether the party the collaborative lawyer represents has a |
24 | | history of a coercive or violent relationship with another |
25 | | party. |
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1 | | (c) If a collaborative lawyer reasonably believes that the |
2 | | party the lawyer represents or the prospective party who |
3 | | consults the lawyer has a history of a coercive or violent |
4 | | relationship with another party or prospective party, the |
5 | | lawyer may not begin or continue a collaborative law process |
6 | | unless: |
7 | | (1) the party or the prospective party requests |
8 | | beginning or continuing a process; and |
9 | | (2) the collaborative lawyer reasonably believes that |
10 | | the safety of the party or prospective party can be |
11 | | protected adequately during a process.
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12 | | Section 16. Confidentiality of collaborative law |
13 | | communication. A collaborative law communication is |
14 | | confidential to the extent agreed by the parties in a signed |
15 | | record or as provided by law of this State other than this Act.
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16 | | Section 17. Privilege against disclosure for collaborative |
17 | | law communication; admissibility; discovery.
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18 | | (a) Subject to Sections 18 and 19, a collaborative law |
19 | | communication is privileged under subsection (b), is not |
20 | | subject to discovery, and is not admissible in evidence. |
21 | | (b) In a proceeding, the following privileges apply:
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22 | | (1) A party may refuse to disclose, and may prevent any |
23 | | other person from disclosing, a collaborative law |
24 | | communication. |
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1 | | (2) A nonparty participant may refuse to disclose, and |
2 | | may prevent any other person from disclosing, a |
3 | | collaborative law communication of the nonparty |
4 | | participant.
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5 | | (c) Evidence or information that is otherwise admissible or |
6 | | subject to discovery does not become inadmissible or protected |
7 | | from discovery solely because of its disclosure or use in a |
8 | | collaborative law process.
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9 | | Section 18. Waiver and preclusion of privilege.
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10 | | (a) A privilege under Section 17 may be waived in a record |
11 | | or orally during a proceeding if it is expressly waived by all |
12 | | parties and, in the case of the privilege of a nonparty |
13 | | participant, it is also expressly waived by the nonparty |
14 | | participant.
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15 | | (b) A person that makes a disclosure or representation |
16 | | about a collaborative law communication which prejudices |
17 | | another person in a proceeding may not assert a privilege under |
18 | | Section 17, but this preclusion applies only to the extent |
19 | | necessary for the person prejudiced to respond to the |
20 | | disclosure or representation.
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21 | | Section 19. Limits of privilege.
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22 | | (a) There is no privilege under Section 17 for a |
23 | | collaborative law communication that is: |
24 | | (1) available to the public under the Freedom of |
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1 | | Information Act or made during a session of a collaborative |
2 | | law process that is open, or is required by law to be open, |
3 | | to the public; |
4 | | (2) a threat or statement of a plan to inflict bodily |
5 | | injury or commit a crime of violence; |
6 | | (3) intentionally used to plan a crime, commit or |
7 | | attempt to commit a crime, or conceal an ongoing crime or |
8 | | ongoing criminal activity; or |
9 | | (4) in an agreement resulting from the collaborative |
10 | | law process, evidenced by a record signed by all parties to |
11 | | the agreement. |
12 | | (b) The privileges under Section 17 for a collaborative law |
13 | | communication do not apply to the extent that a communication |
14 | | is: |
15 | | (1) sought or offered to prove or disprove a claim or |
16 | | complaint of professional misconduct or malpractice |
17 | | arising from or related to a collaborative law process; or |
18 | | (2) sought or offered to prove or disprove abuse, |
19 | | neglect, abandonment, or exploitation of a child or adult, |
20 | | unless a child protective services agency or adult |
21 | | protective services agency is a party to or otherwise |
22 | | participates in the process.
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23 | | (c) There is no privilege under Section 17 if a tribunal |
24 | | finds, after a hearing in camera, that the party seeking |
25 | | discovery or the proponent of the evidence has shown the |
26 | | evidence is not otherwise available, the need for the evidence |
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1 | | substantially outweighs the interest in protecting |
2 | | confidentiality, and the collaborative law communication is |
3 | | sought or offered in: |
4 | | (1) a court proceeding involving a felony or |
5 | | misdemeanor; or |
6 | | (2) a proceeding seeking rescission or reformation of a |
7 | | contract arising out of the collaborative law process or in |
8 | | which a defense to avoid liability on the contract is |
9 | | asserted. |
10 | | (d) If a collaborative law communication is subject to an |
11 | | exception under subsection (b) or (c), only the part of the |
12 | | communication necessary for the application of the exception |
13 | | may be disclosed or admitted. |
14 | | (e) Disclosure or admission of evidence excepted from the |
15 | | privilege under subsection (b) or (c) does not make the |
16 | | evidence or any other collaborative law communication |
17 | | discoverable or admissible for any other purpose. |
18 | | (f) The privileges under Section 17 do not apply if the |
19 | | parties agree in advance in a signed record, or if a record of |
20 | | a proceeding reflects agreement by the parties, that all or |
21 | | part of a collaborative law process is not privileged. This |
22 | | subsection does not apply to a collaborative law communication |
23 | | made by a person that did not receive actual notice of the |
24 | | agreement before the communication was made.
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25 | | Section 20. Authority of tribunal in case of noncompliance. |
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1 | | (a) If an agreement fails to meet the requirements of |
2 | | Section 4, or a lawyer fails to comply with Section 14 or 15, a |
3 | | tribunal may nonetheless find that the parties intended to |
4 | | enter into a collaborative law participation agreement if they: |
5 | | (1) signed a record indicating an intention to enter |
6 | | into a collaborative law participation agreement; and |
7 | | (2) reasonably believed they were participating in a |
8 | | collaborative law process. |
9 | | (b) If a tribunal makes the findings specified in |
10 | | subsection (a), and the interests of justice require, the |
11 | | tribunal may: |
12 | | (1) enforce an agreement evidenced by a record |
13 | | resulting from the process in which the parties |
14 | | participated; |
15 | | (2) apply the disqualification provisions of Sections |
16 | | 5, 6, 9, 10, and 11; and |
17 | | (3) apply a privilege under Section 17.
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18 | | Section 21. Uniformity of application and construction. In |
19 | | applying and construing this uniform Act, consideration must be |
20 | | given to the need to promote uniformity of the law with respect |
21 | | to its subject matter among states that enact it.
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22 | | Section 22. Relation to electronic signatures in global and |
23 | | national commerce act. This Act modifies, limits, and |
24 | | supersedes the federal Electronic Signatures in Global and |
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1 | | National Commerce Act, 15 U.S.C. Section 7001, et seq., but |
2 | | does not modify, limit, or supersede Section 101(c) of that |
3 | | Act, 15 U.S.C Section 7001(c), or authorize electronic delivery |
4 | | of any of the notices described in Section 103(b) of that Act, |
5 | | 15 U.S.C. Section 7003(b).
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6 | | Section 23. (Blank).
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7 | | Section 24. (Blank).
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