Florida Senate - 2016                                     SB 972
       By Senator Lee
       24-00824A-16                                           2016972__
    1                        A bill to be entitled                      
    2         An act relating to family law; providing a short
    3         title; providing a directive to the Division of Law
    4         Revision and Information; providing legislative
    5         findings; creating s. 61.55, F.S.; providing a
    6         purpose; creating s. 61.56, F.S.; defining terms;
    7         creating s. 61.57, F.S.; providing that a
    8         collaborative law process begins when the parties
    9         enter into a collaborative law participation
   10         agreement; prohibiting a tribunal from ordering a
   11         party to participate in a collaborative law process
   12         over the party’s objection; providing the conditions
   13         under which a collaborative law process concludes,
   14         terminates, or continues; creating s. 61.58, F.S.;
   15         providing for confidentiality of communications made
   16         during the collaborative law process; providing
   17         exceptions; providing that specified provisions do not
   18         take effect until 30 days after the Florida Supreme
   19         Court adopts rules of procedure and professional
   20         responsibility; providing a contingent effective date;
   21         providing effective dates.
   23  Be It Enacted by the Legislature of the State of Florida:
   25         Section 1. This act may be cited as the “Collaborative Law
   26  Process Act.”
   27         Section 2. The Division of Law Revision and Information is
   28  directed to create part III of chapter 61, Florida Statutes,
   29  consisting of ss. 61.55-61.58, Florida Statutes, to be entitled
   30  the “Collaborative Law Process Act.”
   31         Section 3. The Legislature finds and declares that the
   32  purpose of part III of chapter 61, Florida Statutes, is to:
   33         (1) Create a uniform system of practice for a collaborative
   34  law process for proceedings under chapters 61 and 742, Florida
   35  Statutes.
   36         (2) Encourage the peaceful resolution of disputes and the
   37  early settlement of pending litigation through voluntary
   38  settlement procedures.
   39         (3) Preserve the working relationship between parties to a
   40  dispute through a nonadversarial method that reduces the
   41  emotional and financial toll of litigation.
   42         Section 4. Section 61.55, Florida Statutes, is created to
   43  read:
   44         61.55 Purpose.—The purpose of this part is to create a
   45  uniform system of practice for the collaborative law process in
   46  this state. It is the policy of this state to encourage the
   47  peaceful resolution of disputes and the early resolution of
   48  pending litigation through a voluntary settlement process. The
   49  collaborative law process is a unique nonadversarial process
   50  that preserves a working relationship between the parties and
   51  reduces the emotional and financial toll of litigation.
   52         Section 5. Section 61.56, Florida Statutes, is created to
   53  read:
   54         61.56 Definitions.—As used in this part, the term:
   55         (1) “Collaborative attorney” means an attorney who
   56  represents a party in a collaborative law process.
   57         (2) “Collaborative law communication” means an oral or
   58  written statement, including a statement made in a record, or
   59  nonverbal conduct that:
   60         (a) Is made in the conduct of or in the course of
   61  participating in, continuing, or reconvening for a collaborative
   62  law process; and
   63         (b) Occurs after the parties sign a collaborative law
   64  participation agreement and before the collaborative law process
   65  is concluded or terminated.
   66         (3) “Collaborative law participation agreement” means an
   67  agreement between persons to participate in a collaborative law
   68  process.
   69         (4) “Collaborative law process” means a process intended to
   70  resolve a collaborative matter without intervention by a
   71  tribunal and in which persons sign a collaborative law
   72  participation agreement and are represented by collaborative
   73  attorneys.
   74         (5) “Collaborative matter” means a dispute, a transaction,
   75  a claim, a problem, or an issue for resolution, including a
   76  dispute, a claim, or an issue in a proceeding which is described
   77  in a collaborative law participation agreement and arises under
   78  chapter 61 or chapter 742, including, but not limited to:
   79         (a) Marriage, divorce, dissolution, annulment, and marital
   80  property distribution.
   81         (b) Child custody, visitation, parenting plan, and
   82  parenting time.
   83         (c) Alimony, maintenance, and child support.
   84         (d) Parental relocation with a child.
   85         (e) Parentage and paternity.
   86         (f) Premarital, marital, and postmarital agreements.
   87         (6) “Law firm” means:
   88         (a) One or more attorneys who practice law in a
   89  partnership, professional corporation, sole proprietorship,
   90  limited liability company, or association; or
   91         (b) One or more attorneys employed in a legal services
   92  organization, the legal department of a corporation or other
   93  organization, or the legal department of a governmental entity,
   94  subdivision, agency, or instrumentality.
   95         (7) “Nonparty participant” means a person, other than a
   96  party and the party’s collaborative attorney, who participates
   97  in a collaborative law process.
   98         (8) “Party” means a person who signs a collaborative law
   99  participation agreement and whose consent is necessary to
  100  resolve a collaborative matter.
  101         (9) “Person” means an individual; a corporation; a business
  102  trust; an estate; a trust; a partnership; a limited liability
  103  company; an association; a joint venture; a public corporation;
  104  a government or governmental subdivision, agency, or
  105  instrumentality; or any other legal or commercial entity.
  106         (10) “Proceeding” means a judicial, an administrative, an
  107  arbitral, or any other adjudicative process before a tribunal,
  108  including related prehearing and posthearing motions,
  109  conferences, and discovery.
  110         (11) “Prospective party” means a person who discusses with
  111  a prospective collaborative attorney the possibility of signing
  112  a collaborative law participation agreement.
  113         (12) “Record” means information that is inscribed on a
  114  tangible medium or that is stored in an electronic or other
  115  medium and is retrievable in perceivable form.
  116         (13) “Related to a collaborative matter” means involving
  117  the same parties, transaction or occurrence, nucleus of
  118  operative fact, dispute, claim, or issue as the collaborative
  119  matter.
  120         (14) “Sign” means, with present intent to authenticate or
  121  adopt a record, to:
  122         (a) Execute or adopt a tangible symbol; or
  123         (b) Attach to or logically associate with the record an
  124  electronic symbol, sound, or process.
  125         (15) “Tribunal” means a court, an arbitrator, an
  126  administrative agency, or other body acting in an adjudicative
  127  capacity which, after presentation of evidence or legal
  128  argument, has jurisdiction to render a decision affecting a
  129  party’s interests in a matter.
  130         Section 6. Section 61.57, Florida Statutes, is created to
  131  read:
  132         61.57 Beginning, concluding, and terminating a
  133  collaborative law process.—
  134         (1) The collaborative law process begins, regardless of
  135  whether a legal proceeding is pending, when the parties enter
  136  into a collaborative law participation agreement.
  137         (2) A tribunal may not order a party to participate in a
  138  collaborative law process over that party’s objection.
  139         (3) A collaborative law process is concluded by any of the
  140  following:
  141         (a) Resolution of a collaborative matter as evidenced by a
  142  signed record;
  143         (b) Resolution of a part of the collaborative matter,
  144  evidenced by a signed record, in which the parties agree that
  145  the remaining parts of the collaborative matter will not be
  146  resolved in the collaborative law process; or
  147         (c) Termination of the collaborative law process.
  148         (4) A collaborative law process terminates when a party:
  149         (a) Gives notice to the other parties in a record that the
  150  collaborative law process is concluded;
  151         (b) Begins a proceeding related to a collaborative matter
  152  without the consent of all parties;
  153         (c) Initiates a pleading, a motion, an order to show cause,
  154  or a request for a conference with a tribunal in a pending
  155  proceeding related to a collaborative matter;
  156         (d) Requests that the proceeding be put on the tribunal’s
  157  active calendar in a pending proceeding related to a
  158  collaborative matter;
  159         (e) Takes similar action requiring notice to be sent to the
  160  parties in a pending proceeding related to a collaborative
  161  matter; or
  162         (f) Discharges a collaborative attorney or a collaborative
  163  attorney withdraws from further representation of a party,
  164  except as otherwise provided in subsection (7).
  165         (5) A party’s collaborative attorney shall give prompt
  166  notice to all other parties in a record of a discharge or
  167  withdrawal.
  168         (6) A party may terminate a collaborative law process with
  169  or without cause.
  170         (7) Notwithstanding the discharge or withdrawal of a
  171  collaborative attorney, the collaborative law process continues
  172  if, not later than 30 days after the date that the notice of the
  173  discharge or withdrawal of a collaborative attorney required by
  174  subsection (5) is sent to the parties:
  175         (a) The unrepresented party engages a successor
  176  collaborative attorney;
  177         (b) The parties consent to continue the collaborative law
  178  process by reaffirming the collaborative law participation
  179  agreement in a signed record;
  180         (c) The collaborative law participation agreement is
  181  amended to identify the successor collaborative attorney in a
  182  signed record; and
  183         (d) The successor collaborative attorney confirms his or
  184  her representation of a party in the collaborative law
  185  participation agreement in a signed record.
  186         (8) A collaborative law process does not conclude if, with
  187  the consent of the parties, a party requests a tribunal to
  188  approve a resolution of a collaborative matter or any part
  189  thereof as evidenced by a signed record.
  190         (9) A collaborative law participation agreement may provide
  191  additional methods for concluding a collaborative law process.
  192         Section 7. Section 61.58, Florida Statutes, is created to
  193  read:
  194         61.58 Confidentiality of a collaborative law
  195  communication.—Except as provided in this section, a
  196  collaborative law communication is confidential to the extent
  197  agreed by the parties in a signed record or as otherwise
  198  provided by law.
  201         (a) Subject to subsections (2) and (3), a collaborative law
  202  communication is privileged as provided under paragraph (b), is
  203  not subject to discovery, and is not admissible into evidence.
  204         (b) In a proceeding, the following privileges apply:
  205         1. A party may refuse to disclose, and may prevent another
  206  person from disclosing, a collaborative law communication.
  207         2. A nonparty participant may refuse to disclose, and may
  208  prevent another person from disclosing, a collaborative law
  209  communication of a nonparty participant.
  210         (c) Evidence or information that is otherwise admissible or
  211  subject to discovery does not become inadmissible or protected
  212  from discovery solely because of its disclosure or use in a
  213  collaborative law process.
  215         (a) A privilege under subsection (1) may be waived orally
  216  or in a record during a proceeding if it is expressly waived by
  217  all parties and, in the case of the privilege of a nonparty
  218  participant, if it is expressly waived by the nonparty
  219  participant.
  220         (b) A person who makes a disclosure or representation about
  221  a collaborative law communication that prejudices another person
  222  in a proceeding may not assert a privilege under subsection (1).
  223  This preclusion applies only to the extent necessary for the
  224  person prejudiced to respond to the disclosure or
  225  representation.
  226         (3) LIMITS OF PRIVILEGE.—
  227         (a) A privilege under subsection (1) does not apply to a
  228  collaborative law communication that is:
  229         1. Available to the public under chapter 119 or made during
  230  a session of a collaborative law process that is open, or is
  231  required by law to be open, to the public;
  232         2. A threat, or statement of a plan, to inflict bodily
  233  injury or commit a crime of violence;
  234         3. Intentionally used to plan a crime, commit or attempt to
  235  commit a crime, or conceal an ongoing crime or ongoing criminal
  236  activity; or
  237         4. In an agreement resulting from the collaborative law
  238  process, as evidenced by a record signed by all parties to the
  239  agreement.
  240         (b) The privilege under subsection (1) for a collaborative
  241  law communication does not apply to the extent that such
  242  collaborative law communication is:
  243         1. Sought or offered to prove or disprove a claim or
  244  complaint of professional misconduct or malpractice arising from
  245  or relating to a collaborative law process; or
  246         2. Sought or offered to prove or disprove abuse, neglect,
  247  abandonment, or exploitation of a child or an adult unless the
  248  Department of Children and Families is a party to or otherwise
  249  participates in the process.
  250         (c) A privilege under subsection (1) does not apply if a
  251  tribunal finds, after a hearing in camera, that the party
  252  seeking discovery or the proponent of the evidence has shown
  253  that the evidence is not otherwise available, the need for the
  254  evidence substantially outweighs the interest in protecting
  255  confidentiality, and the collaborative law communication is
  256  sought or offered in:
  257         1. A proceeding involving a felony; or
  258         2. A proceeding seeking rescission or reformation of a
  259  contract arising out of the collaborative law process or in
  260  which a defense is asserted to avoid liability on the contract.
  261         (d) If a collaborative law communication is subject to an
  262  exception under paragraph (b) or paragraph (c), only the part of
  263  the collaborative law communication necessary for the
  264  application of the exception may be disclosed or admitted.
  265         (e) Disclosure or admission of evidence excepted from the
  266  privilege under paragraph (b) or paragraph (c) does not make the
  267  evidence or any other collaborative law communication
  268  discoverable or admissible for any other purpose.
  269         (f) The privilege under subsection (1) does not apply if
  270  the parties agree in advance in a signed record, or if a record
  271  of a proceeding reflects agreement by the parties, that all or
  272  part of a collaborative law process is not privileged. This
  273  paragraph does not apply to a collaborative law communication
  274  made by a person who did not receive actual notice of the
  275  collaborative law participation agreement before the
  276  communication was made.
  277         Section 8. Sections 61.55-61.58, Florida Statutes, as
  278  created by this act, shall not take effect until 30 days after
  279  the Florida Supreme Court adopts rules of procedure and
  280  professional responsibility consistent with this act.
  281         Section 9. Except as otherwise expressly provided in this
  282  act, this act shall take effect July 1, 2016.