SB0401

SENATE BILL 401

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Cisco McSorley

AN ACT

RELATING TO COURTS; ENACTING THE UNIFORM COLLABORATIVE LAW ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. SHORT TITLE.--This act may be cited as the "Uniform Collaborative Law Act".

SECTION 2. DEFINITIONS.--As used in the Uniform Collaborative Law Act:

A. "collaborative law communication" means a statement, whether oral or in a record, or verbal or nonverbal, that:

(1) is made to conduct, participate in, continue or reconvene a collaborative law process; and

(2) occurs after the parties sign a collaborative law participation agreement and before the collaborative law process is concluded;

B. "collaborative law participation agreement" means an agreement by persons to participate in a collaborative law process;

C. "collaborative law process" means a procedure intended to resolve a collaborative matter, without intervention by a tribunal, in which persons:

(1) sign a collaborative law participation agreement; and

(2) are represented by collaborative lawyers;

D. "collaborative lawyer" means a lawyer who represents a party in a collaborative law process;

E. "collaborative matter" means a dispute, transaction, claim, problem or issue for resolution, including a dispute, claim or issue in a proceeding, that is described in a collaborative law participation agreement and arises pursuant to the family or domestic relations law of this state, including:

(1) marriage, divorce, dissolution, annulment and property distribution;

(2) child custody, visitation and parenting time;

(3) alimony, maintenance and child support;

(4) adoption;

(5) parentage; and

(6) premarital, marital and postmarital agreements;

F. "law firm" means:

(1) lawyers who practice law together in a partnership, professional corporation, sole proprietorship, limited liability company or association; and

(2) lawyers employed in a legal services organization, or the legal department of a corporation or other organization, or the legal department of a government or governmental subdivision, agency or instrumentality;

G. "nonparty participant" means a person, other than a party or the party's collaborative lawyer, that participates in a collaborative law process;

H. "party" means a person that signs a collaborative law participation agreement and whose consent is necessary to resolve a collaborative matter;

I. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity;

J. "proceeding" means:

(1) a judicial, administrative, arbitral or other adjudicative process before a tribunal, including related prehearing and post-hearing motions, conferences and discovery; or

(2) a legislative hearing or similar process;

K. "prospective party" means a person that discusses with a prospective collaborative lawyer the possibility of signing a collaborative law participation agreement;

L. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

M. "related to a collaborative matter" means involving the same parties, transaction or occurrence, nucleus of operative fact, dispute, claim or issue as the collaborative matter;

N. "sign" means, with present intent to authenticate or adopt a record:

(1) to execute or adopt a tangible symbol; or

(2) to attach to or logically associate with the record an electronic symbol, sound or process; and

O. "tribunal" means:

(1) a court, arbitrator, administrative agency or other body acting in an adjudicative capacity that, after presentation of evidence or legal argument, has jurisdiction to render a decision affecting a party's interests in a matter; or

(2) a legislative body conducting a hearing or similar process.

SECTION 3. APPLICABILITY.--The Uniform Collaborative Law Act applies to a collaborative law participation agreement that meets the requirements of Section 4 of that act signed on or after January 1, 2014.

SECTION 4. COLLABORATIVE LAW PARTICIPATION AGREEMENT--REQUIREMENTS.--

A. A collaborative law participation agreement shall:

(1) be in a record;

(2) be signed by the parties;

(3) state the parties' intention to resolve a collaborative matter through a collaborative law process pursuant to the Uniform Collaborative Law Act;

(4) describe the nature and scope of the matter;

(5) identify the collaborative lawyer who represents each party in the process; and

(6) contain a statement by each collaborative lawyer confirming the lawyer's representation of a party in the collaborative law process.

B. Parties may agree to include in a collaborative law participation agreement additional provisions not inconsistent with the Uniform Collaborative Law Act.

SECTION 5. BEGINNING AND CONCLUDING COLLABORATIVE LAW PROCESS.--

A. A collaborative law process begins when the parties sign a collaborative law participation agreement.

B. A tribunal shall not order a party to participate in a collaborative law process over that party's objection.

C. A collaborative law process is concluded by:

(1) a resolution of a collaborative matter as evidenced by a signed record;

(2) a resolution of a part of the collaborative matter, evidenced by a signed record, in which the parties agree that the remaining parts of the matter will not be resolved in the process; or

(3) a termination of the process.

D. A collaborative law process terminates:

(1) when a party gives notice to other parties in a record that the process is ended;

(2) when a party:

(a) begins a proceeding related to a collaborative matter without the agreement of all parties; or

(b) in a pending proceeding related to the matter: 1) initiates a pleading, motion, order to show cause or request for a conference with the tribunal; 2) requests that the proceeding be put on the tribunal's active calendar; or 3) takes similar action requiring notice to be sent to the parties; or

(3) except as otherwise provided by Subsection G of this section, when a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party.

E. A party's collaborative lawyer shall give prompt notice to all other parties in a record of a discharge or withdrawal.

F. A party may terminate a collaborative law process with or without cause.

G. Notwithstanding the discharge or withdrawal of a collaborative lawyer, a collaborative law process continues if, not later than thirty days after the date that the notice of the discharge or withdrawal of a collaborative lawyer required by Subsection E of this section is sent to the parties:

(1) the unrepresented party engages a successor collaborative lawyer; and

(2) in a signed record:

(a) the parties consent to continue the process by reaffirming the collaborative law participation agreement;

(b) the agreement is amended to identify the successor collaborative lawyer; and

H. A collaborative law process does not conclude if, with the consent of the parties, a party requests a tribunal to approve a resolution of the collaborative matter or any part thereof as evidenced by a signed record.

I. A collaborative law participation agreement may provide additional methods of concluding a collaborative law process.

SECTION 6. PROCEEDINGS PENDING BEFORE TRIBUNAL--STATUS REPORT.--

A. Persons in a proceeding pending before a tribunal may sign a collaborative law participation agreement to seek to resolve a collaborative matter related to the proceeding. The parties shall file promptly with the tribunal a notice of the agreement after it is signed. An application for a stay of the proceeding shall accompany the notice.

B. The parties shall file promptly with the tribunal notice in a record when a collaborative law process concludes. An application to lift the stay of the proceeding shall accompany the notice. The notice shall not specify any reason for termination of the process.

C. A tribunal in which a proceeding is stayed pursuant to Subsection A of this section may require the parties and collaborative lawyers to provide a status report on the collaborative law process and the proceeding. A status report shall include only information on whether the collaborative law process is ongoing or concluded. A status report shall not include a report, assessment, evaluation, recommendation, finding or other communication regarding a collaborative law process or collaborative matter.

SECTION 7. EMERGENCY ORDER.--During a collaborative law process, a tribunal may issue emergency orders to protect the health, safety, welfare or interest of a party or household member as defined in the Family Violence Protection Act.

SECTION 8. APPROVAL OF AGREEMENT BY TRIBUNAL.--A tribunal may approve an agreement resulting from a collaborative law process.

SECTION 9. DISQUALIFICATION OF COLLABORATIVE LAWYER AND LAWYERS IN ASSOCIATED LAW FIRM.--

A. The supreme court may determine whether a collaborative lawyer is disqualified from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter.

B. The supreme court may determine whether a lawyer in a law firm with which the collaborative lawyer is associated is disqualified from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter if the collaborative lawyer is disqualified from doing so pursuant to Subsection A of this section.

C. The supreme court may determine whether a collaborative lawyer or a lawyer in a law firm with which the collaborative lawyer is associated may represent a party:

(1) to ask a tribunal to approve an agreement resulting from the collaborative law process; or

(2) to seek or defend an emergency order to protect the health, safety, welfare or interest of a party, or household member as defined in the Family Violence Protection Act if a successor lawyer is not immediately available to represent that person.

D. The supreme court may determine whether, if Paragraph (2) of Subsection C of this section applies, a collaborative lawyer or lawyer in a law firm with which the collaborative lawyer is associated may represent a party or household member only until the person is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare or interest of the person.

SECTION 10. LOW-INCOME PARTIES.--

A. The supreme court may determine whether the disqualification of Subsection A of Section 9 of the Uniform Collaborative Law Act applies to a collaborative lawyer representing a party with or without fee.

B. The supreme court may determine whether, after a collaborative law process concludes, another lawyer in a law firm with which a collaborative lawyer disqualified pursuant to Subsection A of Section 9 of the Uniform Collaborative Law Act is associated may represent a party without fee in the collaborative matter or a matter related to the collaborative matter if:

(1) the party has an annual income that qualifies the party for free legal representation pursuant to the criteria established by the law firm for free legal representation;

(2) the collaborative law participation agreement so provides; and

(3) the collaborative lawyer is isolated from any participation in the collaborative matter or a matter related to the collaborative matter through procedures within the law firm that are reasonably calculated to isolate the collaborative lawyer from such participation.

SECTION 11. GOVERNMENTAL ENTITY AS PARTY.--

A. The supreme court may determine whether the disqualification provided in Subsection A of Section 9 of the Uniform Collaborative Law Act applies to a collaborative lawyer representing a party that is a government or governmental subdivision, agency or instrumentality.

B. The supreme court may determine whether, after a collaborative law process concludes, another lawyer in a law firm with which the collaborative lawyer is associated may represent a government or governmental subdivision, agency or instrumentality in the collaborative matter or a matter related to the collaborative matter if:

(1) the collaborative law participation agreement so provides; and

(2) the collaborative lawyer is isolated from any participation in the collaborative matter or a matter related to the collaborative matter through procedures within the law firm that are reasonably calculated to isolate the collaborative lawyer from such participation.

SECTION 12. DISCLOSURE OF INFORMATION.--Except as provided by law other than the Uniform Collaborative Law Act, including the rules of the supreme court, during the collaborative law process, on the request of another party, a party shall make timely, full, candid and informal disclosure of information related to the collaborative matter without formal discovery. A party also shall update promptly previously disclosed information that has materially changed. The parties may define the scope of disclosure during the collaborative law process.

SECTION 13. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND MANDATORY REPORTING NOT AFFECTED.--Except as otherwise provided in the rules of the supreme court, the Uniform Collaborative Law Act does not affect:

A. the professional responsibility obligations and standards applicable to a lawyer or other licensed professional; or

B. the obligation of a person to report abuse or neglect, abandonment or exploitation of a child or adult pursuant to the law of this state.

SECTION 14. APPROPRIATENESS OF COLLABORATIVE LAW PROCESS.--Before a prospective party signs a collaborative law participation agreement, a prospective collaborative lawyer shall:

A. assess with the prospective party factors that the lawyer reasonably believes relate to whether a collaborative law process is appropriate for the prospective party's matter;

B. provide the prospective party with information that the lawyer reasonably believes is sufficient for the party to make an informed decision about the material benefits and risks of a collaborative law process as compared to the material benefits and risks of other reasonably available alternatives for resolving the proposed collaborative matter, such as litigation, mediation, arbitration or expert evaluation; and

C. advise the prospective party that:

(1) after signing an agreement, if a party initiates a proceeding or seeks tribunal intervention in a pending proceeding related to the collaborative matter, the collaborative law process terminates;

(2) participation in a collaborative law process is voluntary and any party has the right to terminate unilaterally a collaborative law process with or without cause; and

(3) the collaborative lawyer and any lawyer in a law firm with which the collaborative lawyer is associated may not appear before a tribunal to represent a party in a proceeding related to the collaborative matter, except as authorized by Subsection C of Section 9 of the Uniform Collaborative Law Act, Subsection B of Section 10 of that act or Subsection B of Section 11 of that act.

SECTION 15. COERCIVE OR VIOLENT RELATIONSHIP.--

A. Before a prospective party signs a collaborative law participation agreement, a prospective collaborative lawyer shall make reasonable inquiry whether the prospective party has a history of a coercive or violent relationship with another prospective party.

B. Throughout a collaborative law process, a collaborative lawyer reasonably and continuously shall assess whether the party that the collaborative lawyer represents has a history of a coercive or violent relationship with another party.

C. If a collaborative lawyer reasonably believes that the party that the lawyer represents or the prospective party that consults the lawyer has a history of a coercive or violent relationship with another party or prospective party, the lawyer may not begin or continue a collaborative law process unless:

(1) the party or the prospective party requests beginning or continuing a process; and

(2) the collaborative lawyer reasonably believes that the safety of the party or prospective party can be protected adequately during a process.

SECTION 16. CONFIDENTIALITY OF COLLABORATIVE LAW

COMMUNICATION.--A collaborative law communication is confidential to the extent agreed by the parties in a signed record or as provided by law of this state other than the Uniform Collaborative Law Act, including the rules of the supreme court.

SECTION 17. PRIVILEGE AGAINST DISCLOSURE FOR COLLABORATIVE LAW COMMUNICATION--ADMISSIBILITY--DISCOVERY.--

A. Except as otherwise provided in the rules of the supreme court, subject to Sections 18 and 19 of the Uniform Collaborative Law Act, a collaborative law communication is privileged pursuant to Subsection B of this section, is not subject to discovery and is not admissible in evidence.

B. Except as otherwise provided in the rules of the supreme court, in a proceeding, the following privileges apply:

(1) a party may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication;

(2) a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication of the nonparty participant; and

(3) evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because of its disclosure or use in a collaborative law process.

SECTION 18. WAIVER AND PRECLUSION OF PRIVILEGE.--

A. Except as otherwise provided in the rules of the supreme court, a privilege pursuant to Section 17 of the Uniform Collaborative Law Act may be waived in a record or orally during a proceeding if it is expressly waived by all parties and, in the case of the privilege of a nonparty participant, it is also expressly waived by the nonparty participant.

B. Except as otherwise provided in the rules of the supreme court, a person that makes a disclosure or representation about a collaborative law communication that prejudices another person in a proceeding may not assert a privilege pursuant to Section 17 of the Uniform Collaborative Law Act, but this preclusion applies only to the extent necessary for the person prejudiced to respond to the disclosure or representation.

SECTION 19. LIMITS OF PRIVILEGE.--

A. Except as otherwise provided in the rules of the supreme court, there is no privilege pursuant to Section 17 of the Uniform Collaborative Law Act for a collaborative law communication that is:

(1) available to the public pursuant to the Inspection of Public Records Act or made during a session of a collaborative law process that is open, or that is required by law to be open, to the public;

(2) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(3) intentionally used to plan a crime, commit or attempt to commit a crime or conceal an ongoing crime or ongoing criminal activity; or

(4) in an agreement resulting from the collaborative law process, evidenced by a record signed by all parties to the agreement.

B. Except as otherwise provided in the rules of the supreme court, the privileges pursuant to Section 17 of the Uniform Collaborative Law Act for a collaborative law communication do not apply to the extent that a communication is:

(1) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or related to a collaborative law process; or

(2) sought or offered to prove or disprove abuse, neglect, abandonment or exploitation of a child or adult, unless the children, youth and families department is a party to or otherwise participates in the process.

C. Except as otherwise provided in the rules of the supreme court, there is no privilege pursuant to Section 17 of the Uniform Collaborative Law Act if a tribunal finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting confidentiality and the collaborative law communication is sought or offered in:

(1) a court proceeding involving a felony; or

(2) a proceeding seeking rescission or reformation of a contract arising out of the collaborative law process or in which a defense to avoid liability on the contract is asserted.

D. Except as otherwise provided in the rules of the supreme court, if a collaborative law communication is subject to an exception pursuant to Subsection B or C of this section, only the part of the communication necessary for the application of the exception may be disclosed or admitted.

E. Except as otherwise provided in the rules of the supreme court, disclosure or admission of evidence excepted from the privilege pursuant to Subsection B or C of this section does not make the evidence or any other collaborative law communication discoverable or admissible for any other purpose.

F. Except as otherwise provided in the rules of the supreme court, the privileges pursuant to Section 17 of the Uniform Collaborative Law Act do not apply if the parties agree in advance in a signed record or if a record of a proceeding reflects agreement by the parties that all or part of a collaborative law process is not privileged. This subsection does not apply to a collaborative law communication made by a person that did not receive actual notice of the agreement before the communication was made.

SECTION 20. AUTHORITY OF TRIBUNAL IN CASE OF NONCOMPLIANCE.--

A. If an agreement fails to meet the requirements of Section 4 of the Uniform Collaborative Law Act or a lawyer fails to comply with Section 14 or 15 of that act, a tribunal may nonetheless find that the parties intended to enter into a collaborative law participation agreement if they:

(1) signed a record indicating an intention to enter into a collaborative law participation agreement; and

(2) reasonably believed they were participating in a collaborative law process.

B. If a tribunal makes the findings specified in Subsection A of this section and the interests of justice require, the tribunal may:

(1) enforce an agreement evidenced by a record resulting from the process in which the parties participated;

(2) apply the disqualification provisions of Sections 5, 6, 9, 10 and 11 of the Uniform Collaborative Law Act; and

(3) apply a privilege pursuant to Section 17 of the Uniform Collaborative Law Act.

SECTION 21. UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In applying and construing the Uniform Collaborative Law Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 22. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.--The Uniform Collaborative Law Act modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

SECTION 23. SEVERABILITY.--If any part or application of the provisions of this act is held invalid, the remainder or its application to other situations or persons shall not be affected.

SECTION 24. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2014.

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