|
Rep. Robyn Gabel
Filed: 3/8/2013
| | 09800HB1029ham001 | | LRB098 05549 HEP 42402 a |
|
|
1 | | AMENDMENT TO HOUSE BILL 1029
|
2 | | AMENDMENT NO. ______. Amend House Bill 1029 by replacing |
3 | | everything after the enacting clause with the following:
|
4 | | "Section 1. Short title. This Act may be cited as the |
5 | | Uniform Collaborative Law Act.
|
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. |
|
| | 09800HB1029ham001 | - 2 - | LRB098 05549 HEP 42402 a |
|
|
1 | | (3) "Collaborative law process" means a procedure intended |
2 | | to resolve a collaborative matter without intervention by a |
3 | | tribunal in which persons: |
4 | | (A) sign a collaborative law participation agreement; |
5 | | and |
6 | | (B) are represented by collaborative lawyers. |
7 | | (4) "Collaborative lawyer" means a lawyer who represents a |
8 | | party in a collaborative law process. |
9 | | (5) "Collaborative matter" means a dispute, transaction, |
10 | | claim, problem, or issue for resolution, including a dispute, |
11 | | claim, or issue in a proceeding, which is described in a |
12 | | collaborative law participation agreement and arises under the |
13 | | family or domestic relations law of this State, including: |
14 | | (A) marriage, divorce, dissolution, annulment, and |
15 | | property distribution; |
16 | | (B) child custody, visitation, and parenting time; |
17 | | (C) alimony, maintenance, and child support; |
18 | | (D) adoption; |
19 | | (E) parentage; and |
20 | | (F) premarital, marital, and post-marital agreements. |
21 | | (6) "Law firm" means: |
22 | | (A) lawyers who practice law together in a partnership, |
23 | | professional corporation, sole proprietorship, limited |
24 | | liability company, or association; and |
25 | | (B) lawyers employed in a legal services organization, |
26 | | or the legal department of a corporation or other |
|
| | 09800HB1029ham001 | - 3 - | LRB098 05549 HEP 42402 a |
|
|
1 | | organization. |
2 | | (7) "Nonparty participant" means a person, other than a |
3 | | party and the party's collaborative lawyer, that participates |
4 | | in a collaborative law process. |
5 | | (8) "Party" means a person that signs a collaborative law |
6 | | participation agreement and whose consent is necessary to |
7 | | resolve a collaborative matter. |
8 | | (9) "Person" means an individual, corporation, business |
9 | | trust, estate, trust, partnership, limited liability company, |
10 | | association, joint venture, public corporation, government or |
11 | | governmental subdivision, agency, or instrumentality, or any |
12 | | other legal or commercial entity.
|
13 | | (10) "Proceeding" means: |
14 | | (A) a judicial, administrative, arbitral, or other |
15 | | adjudicative process before a tribunal, including related |
16 | | prehearing and post-hearing motions, conferences, and |
17 | | discovery; or |
18 | | (B) a legislative hearing or similar process. |
19 | | (11) "Prospective party" means a person that discusses with |
20 | | a prospective collaborative lawyer the possibility of signing a |
21 | | collaborative law participation agreement. |
22 | | (12) "Record" means information that is inscribed on a |
23 | | tangible medium or that is stored in an electronic or other |
24 | | medium and is retrievable in perceivable form. |
25 | | (13) "Related to a collaborative matter" means involving |
26 | | the same parties, transaction or occurrence, nucleus of |
|
| | 09800HB1029ham001 | - 4 - | LRB098 05549 HEP 42402 a |
|
|
1 | | operative fact, dispute, claim, or issue as the collaborative |
2 | | matter. |
3 | | (14) "Sign" means, with present intent to authenticate or |
4 | | adopt a record: |
5 | | (A) to execute or adopt a tangible symbol; or |
6 | | (B) to attach to or logically associate with the record |
7 | | an electronic symbol, sound, or process. |
8 | | (15) "Tribunal" means: |
9 | | (A) a court, arbitrator, administrative agency, or |
10 | | other body acting in an adjudicative capacity which, after |
11 | | presentation of evidence or legal argument, has |
12 | | jurisdiction to render a decision affecting a party's |
13 | | interests in a matter; or |
14 | | (B) a legislative body conducting a hearing or similar |
15 | | process.
|
16 | | Section 3. Applicability. This Act applies to a |
17 | | collaborative law participation agreement that meets the |
18 | | requirements of Section 4 signed on or after the effective date |
19 | | of this Act.
|
20 | | Section 4. Collaborative law participation agreement; |
21 | | requirements. |
22 | | (a) A collaborative law participation agreement must: |
23 | | (1) be in a record; |
24 | | (2) be signed by the parties; |
|
| | 09800HB1029ham001 | - 5 - | LRB098 05549 HEP 42402 a |
|
|
1 | | (3) state the parties' intention to resolve a |
2 | | collaborative matter through a collaborative law process |
3 | | under this Act; |
4 | | (4) describe the nature and scope of the matter; |
5 | | (5) identify the collaborative lawyer who represents |
6 | | each party in the process; and |
7 | | (6) contain a statement by each collaborative lawyer |
8 | | confirming the lawyer's representation of a party in the |
9 | | collaborative law process. |
10 | | (b) Parties may agree to include in a collaborative law |
11 | | participation agreement additional provisions not inconsistent |
12 | | with this Act.
|
13 | | Section 5. Beginning and concluding collaborative law |
14 | | process.
|
15 | | (a) A collaborative law process begins when the parties |
16 | | sign a collaborative law participation agreement. |
17 | | (b) A tribunal may not order a party to participate in a |
18 | | collaborative law process over that party's objection. |
19 | | (c) A collaborative law process is concluded by a: |
20 | | (1) resolution of a collaborative matter as evidenced |
21 | | by a signed record; |
22 | | (2) resolution of a part of the collaborative matter, |
23 | | evidenced by a signed record, in which the parties agree |
24 | | that the remaining parts of the matter will not be resolved |
25 | | in the process; or |
|
| | 09800HB1029ham001 | - 6 - | LRB098 05549 HEP 42402 a |
|
|
1 | | (3) termination of the process. |
2 | | (d) A collaborative law process terminates: |
3 | | (1) when a party gives notice to other parties in a |
4 | | record that the process is ended; |
5 | | (2) when a party: |
6 | | (A) begins a proceeding related to a collaborative |
7 | | matter without the agreement of all parties; or |
8 | | (B) in a pending proceeding related to the matter: |
9 | | (i) initiates a pleading, motion, order to |
10 | | show cause, or request for a conference with the |
11 | | tribunal; |
12 | | (ii) requests that the proceeding be put on the |
13 | | tribunal's active calendar; or |
14 | | (iii) takes similar action requiring notice to |
15 | | be sent to the parties; or |
16 | | (3) except as otherwise provided by subsection (g), |
17 | | when a party discharges a collaborative lawyer or a |
18 | | collaborative lawyer withdraws from further representation |
19 | | of a party. |
20 | | (e) A party's collaborative lawyer shall give prompt notice |
21 | | to all other parties in a record of a discharge or withdrawal. |
22 | | (f) A party may terminate a collaborative law process with |
23 | | or without cause. |
24 | | (g) Notwithstanding the discharge or withdrawal of a |
25 | | collaborative lawyer, a collaborative law process continues, |
26 | | if not later than 30 days after the date that the notice of the |
|
| | 09800HB1029ham001 | - 7 - | LRB098 05549 HEP 42402 a |
|
|
1 | | discharge or withdrawal of a collaborative lawyer required by |
2 | | subsection (e) is sent to the parties: |
3 | | (1) the unrepresented party engages a successor |
4 | | collaborative lawyer; and |
5 | | (2) in a signed record: |
6 | | (A) the parties consent to continue the process by |
7 | | reaffirming the collaborative law participation |
8 | | agreement; |
9 | | (B) the agreement is amended to identify the |
10 | | successor collaborative lawyer; and
|
11 | | (C) the successor collaborative lawyer confirms |
12 | | the lawyer's representation of a party in the |
13 | | collaborative process. |
14 | | (h) A collaborative law process does not conclude if, with |
15 | | the consent of the parties, a party requests a tribunal to |
16 | | approve a resolution of the collaborative matter or any part |
17 | | thereof as evidenced by a signed record. |
18 | | (i) A collaborative law participation agreement may |
19 | | provide additional methods of concluding a collaborative law |
20 | | process.
|
21 | | Section 6. Proceedings pending before tribunal; status |
22 | | report.
|
23 | | (a) Persons in a proceeding pending before a tribunal may |
24 | | sign a collaborative law participation agreement to seek to |
25 | | resolve a collaborative matter related to the proceeding. The |
|
| | 09800HB1029ham001 | - 8 - | LRB098 05549 HEP 42402 a |
|
|
1 | | parties shall file promptly with the tribunal a notice of the |
2 | | agreement after it is signed. Subject to subsection (c) and |
3 | | Sections 7 and 8, the filing operates as an application for a |
4 | | stay of the proceeding.
|
5 | | (b) The parties shall file promptly with the tribunal |
6 | | notice in a record when a collaborative law process concludes. |
7 | | The stay of the proceeding under subsection (a) is lifted when |
8 | | the notice is filed. The notice may not specify any reason for |
9 | | termination of the process. |
10 | | (c) A tribunal in which a proceeding is stayed under |
11 | | subsection (a) may require the parties and collaborative |
12 | | lawyers to provide a status report on the collaborative law |
13 | | process and the proceeding. A status report may include only |
14 | | information on whether the process is ongoing or concluded. It |
15 | | may not include a report, assessment, evaluation, |
16 | | recommendation, finding, or other communication regarding a |
17 | | collaborative law process or collaborative law matter. |
18 | | (d) A tribunal may not consider a communication made in |
19 | | violation of subsection (c). |
20 | | (e) A tribunal shall provide parties notice and an |
21 | | opportunity to be heard before dismissing a proceeding in which |
22 | | a notice of collaborative process is filed based on delay or |
23 | | failure to prosecute.
|
24 | | Section 7. Emergency order. During a collaborative law |
25 | | process, a tribunal may issue emergency orders to protect the |
|
| | 09800HB1029ham001 | - 9 - | LRB098 05549 HEP 42402 a |
|
|
1 | | health, safety, welfare, or interest of a party or person |
2 | | identified as protected in Section 201 of the Illinois Domestic |
3 | | Violence Act of 1986.
|
4 | | Section 8. Approval of agreement by tribunal. A tribunal |
5 | | may approve an agreement resulting from a collaborative law |
6 | | process.
|
7 | | Section 9. Disqualification of collaborative lawyer and |
8 | | lawyers in associated law firm.
|
9 | | (a) Except as otherwise provided in subsection (c), a |
10 | | collaborative lawyer is disqualified
from appearing before a |
11 | | tribunal to represent a party in a proceeding related to the |
12 | | collaborative matter. |
13 | | (b) Except as otherwise provided in subsection (c) and |
14 | | Sections 10 and 11, a lawyer in a law firm with which the |
15 | | collaborative lawyer is associated is disqualified from |
16 | | appearing before a tribunal to represent a party in a |
17 | | proceeding related to the collaborative matter if the |
18 | | collaborative lawyer is disqualified from doing so under |
19 | | subsection (a). |
20 | | (c) A collaborative lawyer or a lawyer in a law firm with |
21 | | which the collaborative lawyer is associated may represent a |
22 | | party: |
23 | | (1) to ask a tribunal to approve an agreement resulting |
24 | | from the collaborative law process; or
|
|
| | 09800HB1029ham001 | - 10 - | LRB098 05549 HEP 42402 a |
|
|
1 | | (2) to seek or defend an emergency order to protect the |
2 | | health, safety, welfare, or interest of a party or person |
3 | | identified in Section 201 of the Illinois Domestic Violence |
4 | | Act of 1986 if a successor lawyer is not immediately |
5 | | available to represent that person. |
6 | | (d) If subsection (c)(2) applies, a collaborative lawyer, |
7 | | or lawyer in a law firm with which the collaborative lawyer is |
8 | | associated, may represent a party or person identified in |
9 | | Section 201 of the Illinois Domestic Violence Act of 1986 only |
10 | | until the person is represented by a successor lawyer or |
11 | | reasonable measures are taken to protect the health, safety, |
12 | | welfare, or interest of the person.
|
13 | | Section 10. Low income parties.
|
14 | | (a) The disqualification of Section 9(a) applies to a |
15 | | collaborative lawyer representing a party with or without fee.
|
16 | | (b) After a collaborative law process concludes, another |
17 | | lawyer in a law firm with which a collaborative lawyer |
18 | | disqualified under Section 9(a) is associated may represent a |
19 | | party without fee in the collaborative matter or a matter |
20 | | related to the collaborative matter if: |
21 | | (1) the party has an annual income that qualifies the |
22 | | party for free legal representation under the criteria |
23 | | established by the law firm for free legal representation; |
24 | | (2) the collaborative law participation agreement so |
25 | | provides; and |
|
| | 09800HB1029ham001 | - 11 - | LRB098 05549 HEP 42402 a |
|
|
1 | | (3) the collaborative lawyer is isolated from any |
2 | | participation in the collaborative matter or a matter |
3 | | related to the collaborative matter through procedures |
4 | | within the law firm which are reasonably calculated to |
5 | | isolate the collaborative lawyer from such participation.
|
6 | | Section 11. (Blank).
|
7 | | Section 12. Disclosure of information. Except as provided |
8 | | by law other than this Act, during the collaborative law |
9 | | process, on the request of another party, a party shall make |
10 | | timely, full, candid, and informal disclosure of information |
11 | | related to the collaborative matter without formal discovery. A |
12 | | party also shall update promptly previously disclosed |
13 | | information that has materially changed. The parties may define |
14 | | the scope of disclosure during the collaborative law process.
|
15 | | Section 13. Standards of professional responsibility and |
16 | | mandatory reporting not affected. This Act does not affect:
|
17 | | (1) the professional responsibility obligations and |
18 | | standards applicable to a lawyer or other licensed |
19 | | professional; or
|
20 | | (2) the obligation of a person to report abuse or |
21 | | neglect, abandonment, or exploitation of a child or adult |
22 | | under the law of this State.
|
|
| | 09800HB1029ham001 | - 12 - | LRB098 05549 HEP 42402 a |
|
|
1 | | Section 14. Appropriateness of collaborative law process. |
2 | | Before a prospective party signs a collaborative law |
3 | | participation agreement, a prospective collaborative lawyer |
4 | | shall: |
5 | | (1) assess with the prospective party factors the |
6 | | lawyer reasonably believes relate to whether a |
7 | | collaborative law process is appropriate for the |
8 | | prospective party's matter; |
9 | | (2) provide the prospective party with information |
10 | | that the lawyer reasonably believes is sufficient for the |
11 | | party to make an informed decision about the material |
12 | | benefits and risks of a collaborative law process as |
13 | | compared to the material benefits and risks of other |
14 | | reasonably available alternatives for resolving the |
15 | | proposed collaborative matter, such as litigation, |
16 | | mediation, arbitration, or expert evaluation; and |
17 | | (3) advise the prospective party that: |
18 | | (A) after signing an agreement if a party initiates |
19 | | a proceeding or seeks tribunal intervention in a |
20 | | pending proceeding related to the collaborative |
21 | | matter, the collaborative law process terminates; |
22 | | (B) participation in a collaborative law process |
23 | | is voluntary and any party has the right to terminate |
24 | | unilaterally a collaborative law process with or |
25 | | without cause; and |
26 | | (C) the collaborative lawyer and any lawyer in a |
|
| | 09800HB1029ham001 | - 13 - | LRB098 05549 HEP 42402 a |
|
|
1 | | law firm with which the collaborative lawyer is |
2 | | associated may not appear before a tribunal to |
3 | | represent a party in a proceeding related to the |
4 | | collaborative matter, except as authorized by Section |
5 | | 9(c), 10(b), or 11(b).
|
6 | | Section 15. Coercive or violent relationship.
|
7 | | (a) Before a prospective party signs a collaborative law |
8 | | participation agreement, a prospective collaborative lawyer |
9 | | shall make reasonable inquiry whether the prospective party has |
10 | | a history of a coercive or violent relationship with another |
11 | | prospective party. |
12 | | (b) Throughout a collaborative law process, a |
13 | | collaborative lawyer reasonably and continuously shall assess |
14 | | whether the party the collaborative lawyer represents has a |
15 | | history of a coercive or violent relationship with another |
16 | | party. |
17 | | (c) If a collaborative lawyer reasonably believes that the |
18 | | party the lawyer represents or the prospective party who |
19 | | consults the lawyer has a history of a coercive or violent |
20 | | relationship with another party or prospective party, the |
21 | | lawyer may not begin or continue a collaborative law process |
22 | | unless: |
23 | | (1) the party or the prospective party requests |
24 | | beginning or continuing a process; and |
25 | | (2) the collaborative lawyer reasonably believes that |
|
| | 09800HB1029ham001 | - 14 - | LRB098 05549 HEP 42402 a |
|
|
1 | | the safety of the party or prospective party can be |
2 | | protected adequately during a process.
|
3 | | Section 16. Confidentiality of collaborative law |
4 | | communication. A collaborative law communication is |
5 | | confidential to the extent agreed by the parties in a signed |
6 | | record or as provided by law of this State other than this Act.
|
7 | | Section 17. Privilege against disclosure for collaborative |
8 | | law communication; admissibility; discovery.
|
9 | | (a) Subject to Sections 18 and 19, a collaborative law |
10 | | communication is privileged under subsection (b), is not |
11 | | subject to discovery, and is not admissible in evidence. |
12 | | (b) In a proceeding, the following privileges apply:
|
13 | | (1) A party may refuse to disclose, and may prevent any |
14 | | other person from disclosing, a collaborative law |
15 | | communication. |
16 | | (2) A nonparty participant may refuse to disclose, and |
17 | | may prevent any other person from disclosing, a |
18 | | collaborative law communication of the nonparty |
19 | | participant.
|
20 | | (c) Evidence or information that is otherwise admissible or |
21 | | subject to discovery does not become inadmissible or protected |
22 | | from discovery solely because of its disclosure or use in a |
23 | | collaborative law process.
|
|
| | 09800HB1029ham001 | - 15 - | LRB098 05549 HEP 42402 a |
|
|
1 | | Section 18. Waiver and preclusion of privilege.
|
2 | | (a) A privilege under Section 17 may be waived in a record |
3 | | or orally during a proceeding if it is expressly waived by all |
4 | | parties and, in the case of the privilege of a nonparty |
5 | | participant, it is also expressly waived by the nonparty |
6 | | participant.
|
7 | | (b) A person that makes a disclosure or representation |
8 | | about a collaborative law communication which prejudices |
9 | | another person in a proceeding may not assert a privilege under |
10 | | Section 17, but this preclusion applies only to the extent |
11 | | necessary for the person prejudiced to respond to the |
12 | | disclosure or representation.
|
13 | | Section 19. Limits of privilege.
|
14 | | (a) There is no privilege under Section 17 for a |
15 | | collaborative law communication that is: |
16 | | (1) available to the public under the Freedom of |
17 | | Information Act or made during a session of a collaborative |
18 | | law process that is open, or is required by law to be open, |
19 | | to the public; |
20 | | (2) a threat or statement of a plan to inflict bodily |
21 | | injury or commit a crime of violence; |
22 | | (3) intentionally used to plan a crime, commit or |
23 | | attempt to commit a crime, or conceal an ongoing crime or |
24 | | ongoing criminal activity; or |
25 | | (4) in an agreement resulting from the collaborative |
|
| | 09800HB1029ham001 | - 16 - | LRB098 05549 HEP 42402 a |
|
|
1 | | law process, evidenced by a record signed by all parties to |
2 | | the agreement. |
3 | | (b) The privileges under Section 17 for a collaborative law |
4 | | communication do not apply to the extent that a communication |
5 | | is: |
6 | | (1) sought or offered to prove or disprove a claim or |
7 | | complaint of professional misconduct or malpractice |
8 | | arising from or related to a collaborative law process; or |
9 | | (2) sought or offered to prove or disprove abuse, |
10 | | neglect, abandonment, or exploitation of a child or adult, |
11 | | unless a child protective services agency or adult |
12 | | protective services agency is a party to or otherwise |
13 | | participates in the process.
|
14 | | (c) There is no privilege under Section 17 if a tribunal |
15 | | finds, after a hearing in camera, that the party seeking |
16 | | discovery or the proponent of the evidence has shown the |
17 | | evidence is not otherwise available, the need for the evidence |
18 | | substantially outweighs the interest in protecting |
19 | | confidentiality, and the collaborative law communication is |
20 | | sought or offered in: |
21 | | (1) a court proceeding involving a felony or |
22 | | misdemeanor; or |
23 | | (2) a proceeding seeking rescission or reformation of a |
24 | | contract arising out of the collaborative law process or in |
25 | | which a defense to avoid liability on the contract is |
26 | | asserted. |
|
| | 09800HB1029ham001 | - 17 - | LRB098 05549 HEP 42402 a |
|
|
1 | | (d) If a collaborative law communication is subject to an |
2 | | exception under subsection (b) or (c), only the part of the |
3 | | communication necessary for the application of the exception |
4 | | may be disclosed or admitted. |
5 | | (e) Disclosure or admission of evidence excepted from the |
6 | | privilege under subsection (b) or (c) does not make the |
7 | | evidence or any other collaborative law communication |
8 | | discoverable or admissible for any other purpose. |
9 | | (f) The privileges under Section 17 do not apply if the |
10 | | parties agree in advance in a signed record, or if a record of |
11 | | a proceeding reflects agreement by the parties, that all or |
12 | | part of a collaborative law process is not privileged. This |
13 | | subsection does not apply to a collaborative law communication |
14 | | made by a person that did not receive actual notice of the |
15 | | agreement before the communication was made.
|
16 | | Section 20. Authority of tribunal in case of noncompliance. |
17 | | (a) If an agreement fails to meet the requirements of |
18 | | Section 4, or a lawyer fails to comply with Section 14 or 15, a |
19 | | tribunal may nonetheless find that the parties intended to |
20 | | enter into a collaborative law participation agreement if they: |
21 | | (1) signed a record indicating an intention to enter |
22 | | into a collaborative law participation agreement; and |
23 | | (2) reasonably believed they were participating in a |
24 | | collaborative law process. |
25 | | (b) If a tribunal makes the findings specified in |
|
| | 09800HB1029ham001 | - 18 - | LRB098 05549 HEP 42402 a |
|
|
1 | | subsection (a), and the interests of justice require, the |
2 | | tribunal may: |
3 | | (1) enforce an agreement evidenced by a record |
4 | | resulting from the process in which the parties |
5 | | participated; |
6 | | (2) apply the disqualification provisions of Sections |
7 | | 5, 6, 9, 10, and 11; and |
8 | | (3) apply a privilege under Section 17.
|
9 | | Section 21. Uniformity of application and construction. In |
10 | | applying and construing this uniform Act, consideration must be |
11 | | given to the need to promote uniformity of the law with respect |
12 | | to its subject matter among states that enact it.
|
13 | | Section 22. Relation to electronic signatures in global and |
14 | | national commerce act. This Act modifies, limits, and |
15 | | supersedes the federal Electronic Signatures in Global and |
16 | | National Commerce Act, 15 U.S.C. Section 7001, et seq., but |
17 | | does not modify, limit, or supersede Section 101(c) of that |
18 | | Act, 15 U.S.C Section 7001(c), or authorize electronic delivery |
19 | | of any of the notices described in Section 103(b) of that Act, |
20 | | 15 U.S.C. Section 7003(b).
|
21 | | Section 23. (Blank).
|
22 | | Section 24. (Blank).
|