84R858 CAE-F
By: Zedler H.B. No. 2512
A BILL TO BE ENTITLED
AN ACT
relating to the adoption of a uniform collaborative law Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 7, Civil Practice and Remedies Code, is
amended by adding Chapter 161 to read as follows:
CHAPTER 161. UNIFORM COLLABORATIVE LAW ACT
SUBCHAPTER A. APPLICATION AND CONSTRUCTION
Sec. 161.001. POLICY. It is the policy of this state to
encourage the peaceable resolution of disputes and the early
settlement of pending litigation through voluntary settlement
procedures.
Sec. 161.002. CONFLICTS BETWEEN PROVISIONS. If a provision
of this chapter conflicts with another provision of this code or
another statute or rule of this state and the conflict cannot be
reconciled, this chapter prevails. This chapter does not apply to
family law matters governed by Chapter 15, Family Code.
Sec. 161.003. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this chapter, consideration must be
given to the need to promote uniformity of the law with respect to
its subject matter among states that enact a collaborative law
process Act.
Sec. 161.004. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This chapter 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)).
SUBCHAPTER B. GENERAL PROVISIONS
Sec. 161.051. SHORT TITLE. This chapter may be cited as the
Uniform Collaborative Law Act.
Sec. 161.052. DEFINITIONS. In this chapter:
(1) "Collaborative law communication" means a
statement made by a party or nonparty participant, whether oral or
in a record, or verbal or nonverbal, that:
(A) is made to conduct, participate in, continue,
or reconvene a collaborative law process; and
(B) occurs after the parties sign a collaborative
law participation agreement and before the collaborative law
process is terminated or otherwise concluded.
(2) "Collaborative law participation agreement" means
an agreement by persons to participate in a collaborative law
process in conformity with this chapter.
(3) "Collaborative law process" means a procedure
intended to resolve a collaborative matter without intervention by
a tribunal in which parties:
(A) sign a collaborative law participation
agreement; and
(B) are represented by collaborative lawyers.
(4) "Collaborative lawyer" means a lawyer who
represents a party in a collaborative law process.
(5) "Collaborative matter" means a dispute,
transaction, claim, problem, or issue for resolution described in a
collaborative law participation agreement. The term includes a
dispute, claim, or issue in a proceeding.
(6) "Law firm" means:
(A) lawyers who practice law together in a
partnership, professional corporation, sole proprietorship,
limited liability company, or association; and
(B) lawyers employed in a legal services
organization or in the legal department of a corporation or other
organization or of a government or governmental subdivision,
agency, or instrumentality.
(7) "Nonparty participant" means a person, including a
collaborative lawyer, other than a party, who participates in a
collaborative law process.
(8) "Party" means a person who signs a collaborative
law participation agreement and whose consent is necessary to
resolve a collaborative matter.
(9) "Proceeding" means:
(A) a judicial, administrative, arbitral, or
other adjudicative process before a tribunal, including related
prehearing and posthearing motions, conferences, and discovery; or
(B) a legislative hearing or similar process.
(10) "Prospective party" means a person who discusses
with a prospective collaborative lawyer the possibility of signing
a collaborative law participation agreement.
(11) "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.
(12) "Related to a collaborative matter" means a
matter involving the same parties, occurrence, and nucleus of
operative facts as the collaborative matter.
(13) "Sign" means, with present intent to authenticate
or adopt a record, to:
(A) execute or adopt a tangible symbol; or
(B) attach to or logically associate with the
record an electronic symbol, sound, or process.
(14) "Tribunal" means:
(A) 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
(B) a legislative body conducting a hearing or
similar process.
SUBCHAPTER C. COLLABORATIVE LAW PROCESS
Sec. 161.101. REQUIREMENTS OF COLLABORATIVE LAW
PARTICIPATION AGREEMENT. (a) A collaborative law participation
agreement must:
(1) be in a record;
(2) be signed by the parties;
(3) state the parties' intent to resolve a
collaborative matter through a collaborative law process under this
chapter;
(4) describe the nature and scope of the matter;
(5) identify the collaborative lawyer who represents
each party in the process;
(6) contain a statement or other representation by
each collaborative lawyer confirming the lawyer's representation
of a party in the collaborative law process; and
(7) state that the collaborative lawyers are
disqualified from representing their respective parties in a
proceeding before a tribunal related to the collaborative matter,
except as otherwise provided by this chapter.
(b) Parties may agree to include in a collaborative law
participation agreement additional provisions not inconsistent
with this chapter.
Sec. 161.102. BEGINNING AND CONCLUDING COLLABORATIVE LAW
PROCESS. (a) A collaborative law process begins when the parties
sign a collaborative law participation agreement.
(b) A tribunal may 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) resolution of a collaborative matter as evidenced
by a signed record;
(2) resolution of a part of a 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) termination of the process under Subsection (d) or
as otherwise provided by this chapter.
(d) A collaborative law process terminates:
(1) when a party or collaborative lawyer gives notice
to all other parties or collaborative lawyers 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:
(i) without the agreement of all parties,
initiates a pleading, motion, or request for a conference with the
tribunal;
(ii) initiates an order to show cause or
requests that the proceeding be put on the tribunal's active
calendar; or
(iii) takes similar action requiring notice
to be sent to the parties; or
(3) except as otherwise provided by Subsection (g),
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
in a record to all other parties of the collaborative lawyer's
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 the 30th day after the date the notice of the
collaborative lawyer's discharge or withdrawal required by
Subsection (e) 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
(C) the successor collaborative lawyer confirms
the lawyer's representation of a party in the collaborative law
process.
(h) A collaborative law process does not conclude if, with
the consent of the parties to a signed record resolving all or part
of the collaborative matter, a party requests a tribunal to approve
a resolution of the collaborative matter or any part of that matter
as evidenced by a signed record.
(i) A collaborative law participation agreement may provide
additional methods of concluding a collaborative law process.
(j) All applicable statutes of limitations shall
automatically toll beginning on the earlier of the date of the
commencement of a proceeding or the signing of the collaborative
law participation agreement by all parties in the collaborative law
process. Applicable limitations periods shall recommence running
with respect to a party on the later of the date on which the
proceeding terminates or otherwise concludes, or the 30th day after
the date on which the collaborative law process terminates or
otherwise concludes as to that party, unless a longer tolling
period is agreed to by all parties in the collaborative law
participation agreement.
Sec. 161.103. 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 the agreement is signed. Subject to Subsection (c) and
Sections 161.104 and 161.105, the filing operates as a stay of the
proceeding.
(b) Each party shall file promptly with the tribunal notice
in a record when a collaborative law process terminates or
otherwise concludes. The stay of the proceeding under Subsection
(a) is lifted when the notice is filed. The notice may not specify
any reason for terminating or otherwise concluding the process.
(c) A tribunal in which a proceeding is stayed under
Subsection (a) may require the parties and collaborative lawyers to
provide a status report on the collaborative law process and the
proceeding. A status report:
(1) may include only information on whether the
process is ongoing or concluded; and
(2) may not include a report, assessment, evaluation,
recommendation, finding, or other communication regarding a
collaborative law process or collaborative matter.
(d) A tribunal may not consider a communication made in
violation of Subsection (c).
(e) Two years after the date of a stay of a proceeding and
after providing the parties notice and an opportunity to be heard, a
tribunal may dismiss a proceeding based on delay or failure to
prosecute.
Sec. 161.104. EMERGENCY ORDER. During a collaborative law
process, a tribunal may issue an emergency order to protect the
health, safety, welfare, or interest of a party or nonparty
participant. If the emergency order is granted without the
agreement of all parties, the granting of the order terminates the
collaborative law process.
Sec. 161.105. EFFECT OF WRITTEN SETTLEMENT AGREEMENT. (a)
A settlement agreement under this chapter is enforceable in the
same manner as a written settlement agreement under Section
154.071.
(b) Notwithstanding Rule 11, Texas Rules of Civil
Procedure, or another rule or law, a party is entitled to judgment
on a settlement agreement under this chapter if the agreement:
(1) provides, in a prominently displayed statement
that is in boldfaced type, capitalized, or underlined, that the
agreement is not subject to revocation; and
(2) is signed by each party to the agreement and the
collaborative lawyer of each party.
Sec. 161.106. DISQUALIFICATION OF COLLABORATIVE LAWYER AND
LAWYERS IN ASSOCIATED LAW FIRM; EXCEPTION. (a) Except as otherwise
provided by Subsection (c) and Sections 161.107 and 161.108, a
collaborative lawyer is disqualified from appearing before a
tribunal to represent a party in a proceeding related to the
collaborative matter.
(b) Except as otherwise provided by Subsection (c) and
Sections 161.107 and 161.108, 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 under Subsection (a).
(c) A collaborative lawyer or a lawyer in a law firm with
which the collaborative lawyer is associated may represent a party:
(1) to request 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 nonparty
participant if a successor lawyer is not immediately available to
represent that person.
(d) The exception prescribed by Subsection (c)(2) does not
apply after the party is represented by a successor lawyer or
reasonable measures are taken to protect the health, safety,
welfare, or interest of that person.
Sec. 161.107. LOW-INCOME PARTIES. (a) The disqualification
of a collaborative lawyer as provided by Section 161.106(a) applies
to a collaborative lawyer representing a party with or without a
fee.
(b) After a collaborative law process concludes, another
lawyer in a law firm with which a collaborative lawyer disqualified
under Section 161.106(a) is associated may represent a party
without a 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 under the criteria established
by the law firm for free legal representation;
(2) the collaborative law participation agreement
authorizes that representation; 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.
Sec. 161.108. GOVERNMENTAL ENTITY AS PARTY. (a) The
disqualification prescribed by Section 161.106(a) applies to a
collaborative lawyer representing a party that is a government or
governmental subdivision, agency, or instrumentality.
(b) After a collaborative law process concludes, another
lawyer in the government or governmental subdivision, agency, or
instrumentality with which the collaborative lawyer is associated
may represent the 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
authorizes that representation; 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.
Sec. 161.109. DISCLOSURE OF INFORMATION. (a) Except as
otherwise provided by law other than this chapter, during the
collaborative law process, on the request of another party, a party
shall make timely, full, candid, and informal disclosure of
non-privileged information related to the collaborative matter to
all participants in the collaborative law process without formal
discovery under the rules of the tribunal. A party shall update
promptly any previously disclosed information that has materially
changed.
(b) The parties may define the scope and terms of the
disclosure under Subsection (a) during the collaborative law
process.
Sec. 161.110. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND
MANDATORY REPORTING NOT AFFECTED. This chapter does not affect:
(1) the professional responsibility obligations and
standards applicable to a lawyer or other licensed professional; or
(2) the obligation of a person under other law to
report abuse or neglect, abandonment, or exploitation of a child or
adult.
Sec. 161.111. INFORMED CONSENT. Before a prospective party
signs a collaborative law participation agreement, a prospective
collaborative lawyer must:
(1) assess with the prospective party factors the
lawyer reasonably believes relate to whether a collaborative law
process is appropriate for the prospective party's matter;
(2) 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, including litigation, mediation,
arbitration, or expert evaluation; and
(3) advise the prospective party that:
(A) after signing an agreement, if a party
initiates a proceeding or seeks tribunal intervention in a pending
proceeding related to the collaborative matter without the consent
of all parties in a signed record, the collaborative law process
terminates;
(B) participation in a collaborative law process
is voluntary and any party or collaborative lawyer has the right to
terminate unilaterally a collaborative law process with or without
cause; and
(C) 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
Section 161.106(c), 161.107(b), or 161.108(b).
Sec. 161.112. CONFIDENTIALITY OF COLLABORATIVE LAW
COMMUNICATION. (a) A collaborative law communication is
confidential to the extent agreed to by the parties in a signed
record or as provided by law other than this chapter.
(b) The conduct and demeanor in the collaborative law
process of the parties and nonparty participants, including their
collaborative lawyers, are confidential.
(c) If the parties agree in a signed record, communications
related to the collaborative matter occurring before the signing of
the collaborative law participation agreement are confidential.
(d) If this section conflicts with other legal requirements
for disclosure of communications, records, or materials, the issue
of confidentiality may be presented to the tribunal having
jurisdiction of the proceeding to determine, in camera, whether the
facts, circumstances, and context of the communications or
materials sought to be disclosed warrant a protective order of the
tribunal or whether the communications or materials are subject to
disclosure. The presentation of the issue of confidentiality to a
tribunal under this subsection does not constitute a termination of
the collaborative law process under Section 161.102(d)(2)(A).
(e) A party or nonparty participant may disclose
confidential collaborative law communications to a party's
successor counsel, subject to the terms of confidentiality in the
collaborative law participation agreement. Collaborative law
communications disclosed under this subsection remain
confidential.
Sec. 161.113. PRIVILEGE AGAINST DISCLOSURE OF
COLLABORATIVE LAW COMMUNICATION. (a) Except as provided by
Section 161.114, a collaborative law communication, whether made
before or after the institution of a proceeding, is privileged and
not subject to disclosure and may not be used as evidence by or
against a party or nonparty participant in a proceeding.
(b) Any record of a collaborative law communication is
privileged, and neither the parties nor the nonparty participants
may be required to testify in a proceeding related to or arising out
of the collaborative matter or be subject to a process requiring
disclosure of privileged information or collaborative law
communications.
(c) An oral communication or written material used in or
made a part of a collaborative law process is admissible or
discoverable if it is admissible or discoverable independent of the
collaborative law process or obtained outside of the collaborative
law process.
(d) If this section conflicts with other legal requirements
for disclosure of communications, records, or materials, the issue
of privilege may be presented to the tribunal having jurisdiction
of the proceeding to determine, in camera, whether the facts,
circumstances, and context of the communications or materials
sought to be disclosed warrant a protective order of the tribunal or
whether the communications or materials are subject to
disclosure. The presentation of the issue of privilege to a
tribunal under this subsection does not constitute a termination of
the collaborative law process under Section 161.102(d)(2)(A).
(e) A party or nonparty participant may disclose privileged
collaborative law communications to a party's successor counsel,
subject to the terms of confidentiality in the collaborative law
participation agreement. Collaborative law communications
disclosed under this subsection remain privileged.
(f) A person who makes a disclosure or representation about
a collaborative law communication that prejudices the rights of a
party or nonparty participant in a proceeding may not assert a
privilege under this section. The restriction provided by this
subsection applies only to the extent necessary for the person
prejudiced to respond to the disclosure or representation.
Sec. 161.114. LIMITS OF CONFIDENTIALITY AND PRIVILEGE. (a)
The confidentiality prescribed by Section 161.112 or a privilege
prescribed by Section 161.113 does not apply to a collaborative law
communication that is:
(1) in an agreement resulting from the collaborative
law process, evidenced in a record signed by all parties;
(2) subject to an express waiver of the
confidentiality or privilege in a record or orally during a
proceeding if the waiver is made by all parties and nonparty
participants;
(3) available to the public under Chapter 552,
Government Code, or made during a session of a collaborative law
process that is open, or is required by law to be open, to the
public;
(4) a threat or statement of a plan to inflict bodily
injury or commit a crime of violence;
(5) a disclosure of a plan to commit or attempt to
commit a crime, or conceal an ongoing crime or ongoing criminal
activity;
(6) a disclosure of:
(A) suspected abuse or neglect of a child to an
appropriate agency under Subchapter B, Chapter 261, Family Code, or
in a proceeding regarding the abuse or neglect of a child, except
that evidence may be excluded in the case of communications between
an attorney and client under Subchapter C, Chapter 261, Family
Code; or
(B) abuse, neglect, or exploitation of an elderly
or disabled person to an appropriate agency under Subchapter B,
Chapter 48, Human Resources Code; or
(7) sought or offered to prove or disprove:
(A) a claim or complaint of professional
misconduct or malpractice arising from or related to a
collaborative law process;
(B) an allegation that the settlement agreement
was procured by fraud, duress, coercion, or other dishonest means
or that terms of the settlement agreement are illegal;
(C) the necessity and reasonableness of
attorney's fees and related expenses incurred during a
collaborative law process or to challenge or defend the
enforceability of the collaborative law settlement agreement; or
(D) a claim against a third person who did not
participate in the collaborative law process.
(b) If a collaborative law communication is subject to an
exception under Subsection (a), only the part of the communication
necessary for the application of the exception may be disclosed or
admitted.
(c) The disclosure or admission of evidence excepted from
confidentiality or privilege under Subsection (a) does not make the
evidence or any other collaborative law communication discoverable
or admissible for any other purpose.
(d) There is no confidentiality under Section 161.112 or
privilege under Section 161.113 if a tribunal finds, after a
hearing in camera, that the party seeking discovery or the
proponent of the evidence has shown the evidence is not otherwise
available, the need for the evidence substantially outweighs the
interest in protecting confidentiality or privilege, and the
collaborative law communication is sought or offered in:
(1) a court proceeding involving a felony or
misdemeanor; 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.
(e) There is no confidentiality under Section 161.112 or
privilege under Section 161.113 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
confidential or privileged. This subsection does not apply to a
collaborative law communication made by a person who did not
receive actual notice of the agreement before the communication was
made.
Sec. 161.115. AUTHORITY OF TRIBUNAL IN CASE OF
NONCOMPLIANCE. (a) Notwithstanding that an agreement fails to
meet the requirements of Section 161.101 or that a lawyer has failed
to comply with Section 161.111, a tribunal may find that the parties
intended to enter into a collaborative law participation agreement
if the parties:
(1) signed a record indicating an intent to enter into
a collaborative law participation agreement; and
(2) reasonably believed the parties were
participating in a collaborative law process.
(b) If a tribunal makes the findings specified in Subsection
(a) and determines that the interests of justice require the
following action, the tribunal shall:
(1) enforce an agreement evidenced by a record
resulting from the process in which the parties participated;
(2) apply the disqualification provisions of this
chapter; and
(3) apply collaborative law confidentiality under
Section 161.112 or privilege under Section 161.113.
SECTION 2. (a) Except as provided by this section, Chapter
161, Civil Practice and Remedies Code, as added by this Act, applies
only with respect to a collaborative law participation agreement
signed on or after the effective date of this Act.
(b) Section 161.115, Civil Practice and Remedies Code, as
added by this Act, applies only with respect to a record signed on
or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2015.