Florida Senate - 2015 SB 462 By Senator Lee 24-00394A-15 2015462__ 1 A bill to be entitled 2 An act relating to family law; providing legislative 3 findings; providing a directive to the Division of Law 4 Revision and Information; creating s. 61.55, F.S.; 5 providing a purpose; creating s. 61.56, F.S.; defining 6 terms; creating s. 61.57, F.S.; providing that a 7 collaborative law process commences when the parties 8 enter into a collaborative law participation 9 agreement; prohibiting a tribunal from ordering a 10 party to participate in a collaborative law process 11 over the party’s objection; providing the conditions 12 under which a collaborative law process concludes, 13 terminates, or continues; creating s. 61.58, F.S.; 14 providing for confidentiality of communications made 15 during the collaborative law process; providing 16 exceptions; providing that specified provisions do not 17 take effect until 30 days after the Florida Supreme 18 Court adopts rules of procedure and professional 19 responsibility; providing a contingent effective date; 20 providing effective dates. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 24 Section 1. The Legislature finds and declares that the 25 purpose of this part is to: 26 (1) Create a system of practice for a collaborative law 27 process for proceedings under chapters 61 and 742, Florida 28 Statutes. 29 (2) Encourage the peaceful resolution of disputes and the 30 early settlement of pending litigation through voluntary 31 settlement procedures. 32 (3) Preserve the working relationship between parties to a 33 dispute through a nonadversarial method that reduces the 34 emotional and financial toll of litigation. 35 Section 2. The Division of Law Revision and Information is 36 directed to create part III of chapter 61, Florida Statutes, 37 consisting of ss. 61.55-61.58, to be entitled the “Collaborative 38 Law Process Act.” 39 Section 3. Section 61.55, Florida Statutes, is created to 40 read: 41 61.55 Purpose.—The purpose of this part is to create a 42 uniform system of practice for the collaborative law process in 43 this state. It is the policy of this state to encourage the 44 peaceful resolution of disputes and the early resolution of 45 pending litigation through a voluntary settlement process. The 46 collaborative law process is a unique nonadversarial process 47 that preserves a working relationship between the parties and 48 reduces the emotional and financial toll of litigation. 49 Section 4. Section 61.56, Florida Statutes, is created to 50 read: 51 61.56 Definitions.—As used in this part, the term: 52 (1) “Collaborative attorney” means an attorney who 53 represents a party in a collaborative law process. 54 (2) “Collaborative law communication” means an oral or 55 written statement, including a statement made in a record, or 56 nonverbal conduct that: 57 (a) Is made in the conduct of or in the course of 58 participating in, continuing, or reconvening for a collaborative 59 law process; and 60 (b) Occurs after the parties sign a collaborative law 61 participation agreement and before the collaborative law process 62 is concluded or terminated. 63 (3) “Collaborative law participation agreement” means an 64 agreement between persons to participate in a collaborative law 65 process. 66 (4) “Collaborative law process” means a process intended to 67 resolve a collaborative matter without intervention by a 68 tribunal and in which persons sign a collaborative law 69 participation agreement and are represented by collaborative 70 attorneys. 71 (5) “Collaborative matter” means a dispute, transaction, 72 claim, problem, or issue for resolution, including a dispute, 73 claim, or issue in a proceeding which is described in a 74 collaborative law participation agreement and arises under 75 chapter 61 or chapter 742, including, but not limited to: 76 (a) Marriage, divorce, dissolution, annulment, and marital 77 property distribution. 78 (b) Child custody, visitation, parenting plan, and 79 parenting time. 80 (c) Alimony, maintenance, and child support. 81 (d) Parental relocation with a child. 82 (e) Parentage and paternity. 83 (f) Premarital, marital, and postmarital agreements. 84 (6) “Law firm” means: 85 (a) One or more attorneys who practice law in a 86 partnership, professional corporation, sole proprietorship, 87 limited liability company, or association; or 88 (b) One or more attorneys employed in a legal services 89 organization, the legal department of a corporation or other 90 organization, or the legal department of a governmental entity, 91 subdivision, agency, or instrumentality. 92 (7) “Nonparty participant” means a person, other than a 93 party and the party’s collaborative attorney, who participates 94 in a collaborative law process. 95 (8) “Party” means a person who signs a collaborative law 96 participation agreement and whose consent is necessary to 97 resolve a collaborative matter. 98 (9) “Person” means an individual; a corporation; a business 99 trust; an estate; a trust; a partnership; a limited liability 100 company; an association; a joint venture; a public corporation; 101 a government or governmental subdivision, agency, or 102 instrumentality; or any other legal or commercial entity. 103 (10) “Proceeding” means a judicial, administrative, 104 arbitral, or other adjudicative process before a tribunal, 105 including related prehearing and posthearing motions, 106 conferences, and discovery. 107 (11) “Prospective party” means a person who discusses with 108 a prospective collaborative attorney the possibility of signing 109 a collaborative law participation agreement. 110 (12) “Record” means information that is inscribed on a 111 tangible medium or that is stored in an electronic or other 112 medium and is retrievable in perceivable form. 113 (13) “Related to a collaborative matter” means involving 114 the same parties, transaction or occurrence, nucleus of 115 operative fact, dispute, claim, or issue as the collaborative 116 matter. 117 (14) “Sign” means, with present intent to authenticate or 118 adopt a record, to: 119 (a) Execute or adopt a tangible symbol; or 120 (b) Attach to or logically associate with the record an 121 electronic symbol, sound, or process. 122 (15) “Tribunal” means a court, arbitrator, administrative 123 agency, or other body acting in an adjudicative capacity which, 124 after presentation of evidence or legal argument, has 125 jurisdiction to render a decision affecting a party’s interests 126 in a matter. 127 Section 5. Section 61.57, Florida Statutes, is created to 128 read: 129 61.57 Beginning, concluding, and terminating a 130 collaborative law process.— 131 (1) The collaborative law process commences, regardless of 132 whether a legal proceeding is pending, when the parties enter 133 into a collaborative law participation agreement. 134 (2) A tribunal may not order a party to participate in a 135 collaborative law process over that party’s objection. 136 (3) A collaborative law process is concluded by any of the 137 following: 138 (a) Resolution of a collaborative matter as evidenced by a 139 signed record; 140 (b) Resolution of a part of the collaborative matter, 141 evidenced by a signed record, in which the parties agree that 142 the remaining parts of the collaborative matter will not be 143 resolved in the collaborative law process; or 144 (c) Termination of the collaborative law process. 145 (4) A collaborative law process terminates when a party: 146 (a) Gives notice to the other parties in a record that the 147 collaborative law process is concluded; 148 (b) Begins a proceeding related to a collaborative matter 149 without the consent of all parties; 150 (c) Initiates a pleading, motion, order to show cause, or 151 request for a conference with a tribunal in a pending proceeding 152 related to a collaborative matter; 153 (d) Requests that the proceeding be put on the tribunal’s 154 active calendar in a pending proceeding related to a 155 collaborative matter; 156 (e) Takes similar action requiring notice to be sent to the 157 parties in a pending proceeding related to a collaborative 158 matter; or 159 (f) Discharges a collaborative attorney or a collaborative 160 attorney withdraws from further representation of a party, 161 except as otherwise provided in subsection (7). 162 (5) A party’s collaborative attorney shall give prompt 163 notice to all other parties in a record of a discharge or 164 withdrawal. 165 (6) A party may terminate a collaborative law process with 166 or without cause. 167 (7) Notwithstanding the discharge or withdrawal of a 168 collaborative attorney, the collaborative law process continues 169 if, not later than 30 days after the date that the notice of the 170 discharge or withdrawal of a collaborative attorney required by 171 subsection (5) is sent to the parties: 172 (a) The unrepresented party engages a successor 173 collaborative attorney; 174 (b) The parties consent to continue the collaborative law 175 process by reaffirming the collaborative law participation 176 agreement in a signed record; 177 (c) The collaborative law participation agreement is 178 amended to identify the successor collaborative attorney in a 179 signed record; and 180 (d) The successor collaborative attorney confirms his or 181 her representation of a party in the collaborative law 182 participation agreement in a signed record. 183 (8) A collaborative law process does not conclude if, with 184 the consent of the parties, a party requests a tribunal to 185 approve a resolution of a collaborative matter or any part 186 thereof as evidenced by a signed record. 187 (9) A collaborative law participation agreement may provide 188 additional methods for concluding a collaborative law process. 189 Section 6. Section 61.58, Florida Statutes, is created to 190 read: 191 61.58 Confidentiality of a collaborative law 192 communication.—Except as provided in this section, a 193 collaborative law communication is confidential to the extent 194 agreed by the parties in a signed record or as otherwise 195 provided by law. 196 (1) PRIVILEGE AGAINST DISCLOSURE FOR COLLABORATIVE LAW 197 COMMUNICATION; ADMISSIBILITY; DISCOVERY.— 198 (a) Subject to subsections (2) and (3), a collaborative law 199 communication is privileged as provided under paragraph (b), is 200 not subject to discovery, and is not admissible into evidence. 201 (b) In a proceeding, the following privileges apply: 202 1. A party may refuse to disclose, and may prevent another 203 person from disclosing, a collaborative law communication. 204 2. A nonparty participant may refuse to disclose, and may 205 prevent another person from disclosing, a collaborative law 206 communication of a nonparty participant. 207 (c) Evidence or information that is otherwise admissible or 208 subject to discovery does not become inadmissible or protected 209 from discovery solely because of its disclosure or use in a 210 collaborative law process. 211 (2) WAIVER AND PRECLUSION OF PRIVILEGE.— 212 (a) A privilege under subsection (1) may be waived orally 213 or in a record during a proceeding if it is expressly waived by 214 all parties and, in the case of the privilege of a nonparty 215 participant, if it is expressly waived by the nonparty 216 participant. 217 (b) A person who makes a disclosure or representation about 218 a collaborative law communication that prejudices another person 219 in a proceeding may not assert a privilege under subsection (1). 220 This preclusion applies only to the extent necessary for the 221 person prejudiced to respond to the disclosure or 222 representation. 223 (3) LIMITS OF PRIVILEGE.— 224 (a) A privilege under subsection (1) does not apply to a 225 collaborative law communication that is: 226 1. Available to the public under chapter 119 or made during 227 a session of a collaborative law process that is open, or is 228 required by law to be open, to the public; 229 2. A threat, or statement of a plan, to inflict bodily 230 injury or commit a crime of violence; 231 3. Intentionally used to plan a crime, commit or attempt to 232 commit a crime, or conceal an ongoing crime or ongoing criminal 233 activity; or 234 4. In an agreement resulting from the collaborative law 235 process, as evidenced by a record signed by all parties to the 236 agreement. 237 (b) The privilege under subsection (1) for a collaborative 238 law communication does not apply to the extent that such 239 collaborative law communication is: 240 1. Sought or offered to prove or disprove a claim or 241 complaint of professional misconduct or malpractice arising from 242 or relating to a collaborative law process; or 243 2. Sought or offered to prove or disprove abuse, neglect, 244 abandonment, or exploitation of a child or adult unless the 245 Department of Children and Families is a party to or otherwise 246 participates in the process. 247 (c) A privilege under subsection (1) does not apply if a 248 tribunal finds, after a hearing in camera, that the party 249 seeking discovery or the proponent of the evidence has shown 250 that the evidence is not otherwise available, the need for the 251 evidence substantially outweighs the interest in protecting 252 confidentiality, and the collaborative law communication is 253 sought or offered in: 254 1. A court proceeding involving a felony; or 255 2. A proceeding seeking rescission or reformation of a 256 contract arising out of the collaborative law process or in 257 which a defense is asserted to avoid liability on the contract. 258 (d) If a collaborative law communication is subject to an 259 exception under paragraph (b) or paragraph (c), only the part of 260 the collaborative law communication necessary for the 261 application of the exception may be disclosed or admitted. 262 (e) Disclosure or admission of evidence excepted from the 263 privilege under paragraph (b) or paragraph (c) does not make the 264 evidence or any other collaborative law communication 265 discoverable or admissible for any other purpose. 266 (f) The privilege under subsection (1) does not apply if 267 the parties agree in advance in a signed record, or if a record 268 of a proceeding reflects agreement by the parties, that all or 269 part of a collaborative law process is not privileged. This 270 paragraph does not apply to a collaborative law communication 271 made by a person who did not receive actual notice of the 272 collaborative law participation agreement before the 273 communication was made. 274 Section 7. Sections 61.55-61.58, Florida Statutes, as 275 created by this act, shall not take effect until 30 days after 276 the Florida Supreme Court adopts rules of procedure and 277 professional responsibility consistent with this act. 278 Section 8. Except as otherwise expressly provided in this 279 act, this act shall take effect July 1, 2015.