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.