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.
   22  Be It Enacted by the Legislature of the State of Florida:
   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.
  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.
  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.