H.B. 284

1

UNIFORM COLLABORATIVE LAW ACT
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Lorie D. Fowlke
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill creates the Utah Uniform Collaborative Law Act.
10 Highlighted Provisions:
11 This bill:
12 . establishes minimum requirements for collaborative law participation agreements,
13 including written agreements, description of the matter submitted to a collaborative
14 law process, and designation of collaborative lawyers;
15 . requires that the collaborative law process be voluntary;
16 . specifies when and how a collaborative law process begins and is terminated;
17 . creates a stay of proceedings when parties sign a participation agreement to attempt
18 to resolve a matter related to a proceeding pending before a tribunal while allowing
19 the tribunal to ask for periodic status reports;
20 . creates an exception to the stay of proceedings for a collaborative law process for
21 emergency orders to protect health, safety, welfare, or interests of a party, a family
22 member, or a dependent;
23 . authorizes tribunals to approve settlements arising out of a collaborative law
24 process;
25 . codifies the disqualification requirement of collaborative lawyers if a collaborative
26 law process terminates;
27 . defines the scope of the disqualification requirement to both the matter specified in

28 the collaborative law participation agreement and to matters related to the collaborative matter;
29 . extends the disqualification requirement to lawyers in a law firm with which the
30 collaborative lawyer is associated;
31 . creates an exception to the disqualification requirement for the lawyers in a law firm
32 associated with the collaborative lawyer if the lawyer in the firm represents very low
33 income parties for no fee, the parties agree to the exception in advance in their
34 collaborative law participation agreement, and the original collaborative lawyer is
35 screened from further participation in the matter or related matters;
36 . creates a similar exception for collaborative lawyers for government agencies;
37 . requires parties to a collaborative law participation agreement to voluntarily
38 disclose relevant information during the collaborative law process without formal
39 discovery requests and update information previously disclosed that has materially
40 changed;
41 . acknowledges that standards of professional responsibility and child abuse reporting
42 for lawyers and other professionals are not changed by their participation in a
43 collaborative law process;
44 . requires that lawyers disclose and discuss the material risks and benefits of a
45 collaborative law process to help insure parties enter into collaborative law
46 participation agreements with informed consent;
47 . creates an obligation on collaborative lawyers to screen clients for domestic
48 violence and, if present, to participate in a collaborative law process only if the
49 victim consents and the lawyer is reasonably confident that the victim will be safe;
50 . authorizes parties to reach an agreement on the scope of confidentiality of their
51 collaborative law communications;
52 . creates an evidentiary privilege for collaborative law communications which are
53 sought to be introduced into evidence before a tribunal;
54 . provides for the possibility of waiver of and limited exceptions to the evidentiary
55 privilege based on important countervailing public policies identical to those
56 recognized for mediation communications; and
57 . gives tribunals discretion to enforce agreements that result from a collaborative law
58 process, the disqualification requirement and the evidentiary privilege provisions of

59 the act, despite the lawyers' mistakes in required disclosures before collaborative law
60 participation agreements are executed and in the written participation agreements themselves.
61 Monies Appropriated in this Bill:
62 None
63 Other Special Clauses:
64 None
65 Utah Code Sections Affected:
66 ENACTS:
67 78B-19-101, Utah Code Annotated 1953
68 78B-19-102, Utah Code Annotated 1953
69 78B-19-103, Utah Code Annotated 1953
70 78B-19-104, Utah Code Annotated 1953
71 78B-19-105, Utah Code Annotated 1953
72 78B-19-106, Utah Code Annotated 1953
73 78B-19-107, Utah Code Annotated 1953
74 78B-19-108, Utah Code Annotated 1953
75 78B-19-109, Utah Code Annotated 1953
76 78B-19-110, Utah Code Annotated 1953
77 78B-19-111, Utah Code Annotated 1953
78 78B-19-112, Utah Code Annotated 1953
79 78B-19-113, Utah Code Annotated 1953
80 78B-19-114, Utah Code Annotated 1953
81 78B-19-115, Utah Code Annotated 1953
82 78B-19-116, Utah Code Annotated 1953
83 78B-19-117, Utah Code Annotated 1953
84 78B-19-118, Utah Code Annotated 1953
85 78B-19-119, Utah Code Annotated 1953
86 78B-19-120, Utah Code Annotated 1953
87 78B-19-121, Utah Code Annotated 1953
88 78B-19-122, Utah Code Annotated 1953
89

90 Be it enacted by the Legislature of the state of Utah:
91 Section 1. Section 78B-19-101 is enacted to read:
92 CHAPTER 19. UTAH UNIFORM COLLABORATIVE LAW ACT
93 78B-19-101. Title.
94 This chapter may be cited as the "Utah Uniform Collaborative Law Act."
95 Section 2. Section 78B-19-102 is enacted to read:
96 78B-19-102. Definitions.
97 In this chapter:
98 (1) "Collaborative law communication" means a statement, whether oral or in a record,
99 or verbal or nonverbal, that:
100 (a) is made to conduct, participate in, continue, or reconvene a collaborative law
101 process; and
102 (b) occurs after the parties sign a collaborative law participation agreement and before
103 the collaborative law process is concluded.
104 (2) "Collaborative law participation agreement" means an agreement by persons to
105 participate in a collaborative law process.
106 (3) "Collaborative law process" means a procedure intended to resolve a collaborative
107 matter without intervention by a tribunal in which persons:
108 (a) sign a collaborative law participation agreement; and
109 (b) are represented by collaborative lawyers.
110 (4) "Collaborative lawyer" means a lawyer who represents a party in a collaborative
111 law process.
112 (5) "Collaborative matter" means a dispute, transaction, claim, problem, or issue for
113 resolution described in a collaborative law participation agreement.
114 (6) "Law firm" means:
115 (a) lawyers who practice law together in a partnership, professional corporation, sole
116 proprietorship, limited liability company, or association;
117 (b) lawyers employed in a legal services organization;
118 (c) the legal department of a corporation or other organization; or
119 (d) the legal department of a government or governmental subdivision, agency, or

120 instrumentality.
121 (7) "Nonparty participant" means a person, other than a party and the party's
122 collaborative lawyer, that participates in a collaborative law process.
123 (8) "Party" means a person that signs a collaborative law participation agreement and
124 whose consent is necessary to resolve a collaborative matter.
125 (9) "Person" means an individual, corporation, business trust, estate, trust, partnership,
126 limited liability company, association, joint venture, public corporation, government or
127 governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
128 (10) "Proceeding" means:
129 (a) a judicial, administrative, arbitral, or other adjudicative process before a tribunal,
130 including related pre-hearing and post-hearing motions, conferences, and discovery; or
131 (b) a legislative hearing or similar process.
132 (11) "Prospective party" means a person that discusses with a prospective collaborative
133 lawyer the possibility of signing a collaborative law participation agreement.
134 (12) "Record" means information that is inscribed on a tangible medium or that is
135 stored in an electronic or other medium and is retrievable in perceivable form.
136 (13) "Related to a collaborative matter" means involving the same parties, transaction
137 or occurrence, nucleus of operative fact, dispute, claim, or issue as the collaborative matter.
138 (14) "Sign" means, with present intent to authenticate or adopt a record:
139 (a) to execute or adopt a tangible symbol; or
140 (b) to attach to or logically associate with the record an electronic symbol, sound, or
141 process.
142 (15) "Tribunal" means:
143 (a) a court, arbitrator, administrative agency, or other body acting in an adjudicative
144 capacity which, after presentation of evidence or legal argument, has jurisdiction to render a
145 decision affecting a party's interests in a matter; or
146 (b) a legislative body conducting a hearing or similar process.
147 Section 3. Section 78B-19-103 is enacted to read:
148 78B-19-103. Applicability.
149 This chapter applies to a collaborative law participation agreement that meets the
150 requirements of Section 78B-19-104 signed on or after May 11, 2010.

151 Section 4. Section 78B-19-104 is enacted to read:
152 78B-19-104. Collaborative law participation agreement -- Requirements.
153 (1) A collaborative law participation agreement must:
154 (a) be in a record;
155 (b) be signed by the parties;
156 (c) state the parties' intention to resolve a collaborative matter through a collaborative
157 law process under this chapter;
158 (d) describe the nature and scope of the matter;
159 (e) identify the collaborative lawyer who represents each party in the process; and
160 (f) contain a statement by each collaborative lawyer confirming the lawyer's
161 representation of a party in the collaborative law process.
162 (2) Parties may agree to include in a collaborative law participation agreement
163 additional provisions not inconsistent with this chapter.
164 Section 5. Section 78B-19-105 is enacted to read:
165 78B-19-105. Beginning and concluding a collaborative law process.
166 (1) A collaborative law process begins when the parties sign a collaborative law
167 participation agreement.
168 (2) A tribunal may not order a party to participate in a collaborative law process over
169 that party's objection.
170 (3) A collaborative law process is concluded by a:
171 (a) resolution of a collaborative matter as evidenced by a signed record;
172 (b) resolution of a part of the collaborative matter, evidenced by a signed record, in
173 which the parties agree that the remaining parts of the matter will not be resolved in the
174 process; or
175 (c) termination of the process.
176 (4) A collaborative law process terminates:
177 (a) when a party gives notice to other parties in a record that the process is ended; or
178 (b) when a party:
179 (i) begins a proceeding related to a collaborative matter without the agreement of all
180 parties; or
181 (ii) in a pending proceeding related to the matter:

182 (A) initiates a pleading, motion, order to show cause, or request for a conference with
183 the tribunal;
184 (B) requests that the proceeding be put on the tribunal's calendar; or
185 (C) takes similar action requiring notice to be sent to the parties; or
186 (c) except as otherwise provided by Subsection (5), when a party discharges a
187 collaborative lawyer or a collaborative lawyer withdraws from further representation of a party.
188 (5) A party's collaborative lawyer shall give prompt notice to all other parties in a
189 record of a discharge or withdrawal.
190 (6) A party may terminate a collaborative law process with or without cause.
191 (7) Notwithstanding the discharge or withdrawal of a collaborative lawyer, a
192 collaborative law process continues, if not later than 30 days after the date that the notice of the
193 discharge or withdrawal of a collaborative lawyer required by Subsection (4)(c) is sent to the
194 parties:
195 (a) the unrepresented party engages a successor collaborative lawyer; and
196 (b) in a signed record:
197 (i) the parties consent to continue the process by reaffirming the collaborative law
198 participation agreement;
199 (ii) the agreement is amended to identify the successor collaborative lawyer; and
200 (iii) the successor collaborative lawyer confirms the lawyer's representation of a party
201 in the collaborative process.
202 (8) A collaborative law process does not conclude if, with the consent of the parties, a
203 party requests a tribunal to approve a resolution of the collaborative matter or any part thereof
204 as evidenced by a signed record.
205 (9) A collaborative law participation agreement may provide additional methods of
206 concluding a collaborative law process.
207 Section 6. Section 78B-19-106 is enacted to read:
208 78B-19-106. Proceedings pending before tribunal -- Status report.
209 (1) Persons in a proceeding pending before a tribunal may sign a collaborative law
210 participation agreement to seek to resolve a collaborative matter related to the proceeding.
211 Parties shall file promptly with the tribunal a notice of the agreement after it is signed. Subject
212 to Subsection (3) and Sections 78B-19-107 and 78B-19-108 , the filing operates as a stay of the

213 proceeding.
214 (2) Parties shall file promptly with the tribunal notice in a record when a collaborative
215 law process concludes. The stay of the proceeding under Subsection (1) is lifted when the
216 notice is filed. The notice may not specify any reason for termination of the process.
217 (3) A tribunal in which a proceeding is stayed under Subsection (1) may require parties
218 and collaborative lawyers to provide a status report on the collaborative law process and the
219 proceeding. A status report may include only information on whether the process is ongoing or
220 concluded. It may not include a report, assessment, evaluation, recommendation, finding, or
221 other communication regarding a collaborative law process or collaborative law matter.
222 (4) A tribunal may not consider a communication made in violation of Subsection (3).
223 (5) A tribunal shall provide parties notice and an opportunity to be heard before
224 dismissing a proceeding in which a notice of collaborative process is filed based on delay or
225 failure to prosecute.
226 Section 7. Section 78B-19-107 is enacted to read:
227 78B-19-107. Emergency orders.
228 During a collaborative law process, a tribunal may issue emergency orders, including
229 protective orders in accordance with Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act, or
230 Part 2, Child Protective Orders, to protect the health, safety, welfare, or interest of a party or
231 member of a party's household.
232 Section 8. Section 78B-19-108 is enacted to read:
233 78B-19-108. Approval of agreement by tribunal.
234 A tribunal may approve an agreement resulting from a collaborative law process.
235 Section 9. Section 78B-19-109 is enacted to read:
236 78B-19-109. Disqualification of collaborative lawyer and lawyers in associated
237 law firm.
238 (1) Except as otherwise provided in Subsection (3) and a collaborative lawyer is
239 disqualified from appearing before a tribunal to represent a party in a proceeding related to the
240 collaborative matter.
241 (2) Except as otherwise provided in Subsection (3) and Sections 78B-19-110 and
242 78B-19-111 , a lawyer in a law firm with which the collaborative lawyer is associated is
243 disqualified from appearing before a tribunal to represent a party in a proceeding related to the

244 collaborative matter if the collaborative lawyer is disqualified from doing so under Subsection
245 (1).
246 (3) A collaborative lawyer or a lawyer in a law firm with which the collaborative
247 lawyer is associated may represent a party:
248 (a) to ask a tribunal to approve an agreement resulting from the collaborative law
249 process; or
250 (b) to seek or defend an emergency order to protect the health, safety, welfare, or
251 interest of a party, or designated household member if a successor lawyer is not immediately
252 available to represent that person. In that event, Subsections (1) and (2) apply when the party,
253 or designated household member is represented by a successor lawyer or reasonable measures
254 are taken to protect the health, safety, welfare, or interest of that person.
255 Section 10. Section 78B-19-110 is enacted to read:
256 78B-19-110. Low income parties.
257 (1) The disqualification of Subsection 78B-19-109 (1) applies to a collaborative lawyer
258 representing a party with or without fee.
259 (2) After a collaborative law process concludes, another lawyer in a law firm with
260 which a collaborative lawyer disqualified under Subsection 78B-19-109 (1) is associated may
261 represent a party without fee in the collaborative matter or a matter related to the collaborative
262 matter if:
263 (a) the party has an annual income that qualifies the party for free legal representation
264 under the criteria established by the law firm for free legal representation;
265 (b) the collaborative law participation agreement so provides; and
266 (c) the collaborative lawyer is isolated from any participation in the collaborative
267 matter or a matter related to the collaborative matter through procedures within the law firm
268 which are reasonably calculated to isolate the collaborative lawyer from participation.
269 Section 11. Section 78B-19-111 is enacted to read:
270 78B-19-111. Governmental entity as party.
271 (1) The disqualification of Subsection 78B-19-109 (1) applies to a collaborative lawyer
272 representing a party that is a government or governmental subdivision, agency, or
273 instrumentality.
274 (2) After a collaborative law process concludes, another lawyer in a law firm with

275 which the collaborative lawyer is associated may represent a government or governmental
276 subdivision, agency, or instrumentality in the collaborative matter or a matter related to the
277 collaborative matter if:
278 (a) the collaborative law participation agreement so provides; and
279 (b) the collaborative lawyer is isolated from any participation in the collaborative
280 matter or a matter related to the collaborative matter through procedures within the law firm
281 which are reasonably calculated to isolate the collaborative lawyer from participation.
282 Section 12. Section 78B-19-112 is enacted to read:
283 78B-19-112. Disclosure of information.
284 Except as provided by law other than this chapter, during the collaborative law process,
285 on the request of another party, a party shall make timely, full, candid, and informal disclosure
286 of information related to the collaborative matter without formal discovery. A party also shall
287 update promptly previously disclosed information that has materially changed. Parties may
288 define the scope of disclosure during the collaborative law process.
289 Section 13. Section 78B-19-113 is enacted to read:
290 78B-19-113. Standards of professional responsibility and mandatory reporting
291 not affected.
292 This chapter does not affect:
293 (1) the professional responsibility obligations and standards applicable to a lawyer or
294 other licensed professional; or
295 (2) the obligation of a person to report abuse or neglect, abandonment, or exploitation
296 of a child or adult under the law of this state.
297 Section 14. Section 78B-19-114 is enacted to read:
298 78B-19-114. Appropriateness of collaborative law process.
299 Before a prospective party signs a collaborative law participation agreement, a
300 prospective collaborative lawyer shall:
301 (1) assess with the prospective party factors the lawyer reasonably believes relate to
302 whether a collaborative law process is appropriate for the prospective party's matter;
303 (2) provide the prospective party with information that the lawyer reasonably believes
304 is sufficient for the party to make an informed decision about the material benefits and risks of
305 a collaborative law process as compared to the material benefits and risks of other reasonably

306 available alternatives for resolving the proposed collaborative matter, such as litigation,
307 mediation, arbitration, or expert evaluation; and
308 (3) advise the prospective party that:
309 (a) after signing an agreement if a party initiates a proceeding or seeks tribunal
310 intervention in a pending proceeding related to the collaborative matter, the collaborative law
311 process terminates;
312 (b) participation in a collaborative law process is voluntary and any party has the right
313 to terminate unilaterally a collaborative law process with or without cause; and
314 (c) the collaborative lawyer and any lawyer in a law firm with which the collaborative
315 lawyer is associated may not appear before a tribunal to represent a party in a proceeding
316 related to the collaborative matter, except as authorized by Subsection 78B-19-109 (3),
317 78B-19-110 (2), or 78B-19-111 (2).
318 Section 15. Section 78B-19-115 is enacted to read:
319 78B-19-115. Coercive or violent relationship.
320 (1) Before a prospective party signs a collaborative law participation agreement, a
321 prospective collaborative lawyer shall make reasonable inquiry whether the prospective party
322 has a history of a coercive or violent relationship with another prospective party.
323 (2) Throughout a collaborative law process, a collaborative lawyer reasonably and
324 continuously shall assess whether the party the collaborative lawyer represents has a history of
325 a coercive or violent relationship with another party.
326 (3) If a collaborative lawyer reasonably believes that the party the lawyer represents or
327 the prospective party who consults the lawyer has a history of a coercive or violent relationship
328 with another party or prospective party, the lawyer may not begin or continue a collaborative
329 law process unless:
330 (a) the party or the prospective party requests to begin or to continue a process; and
331 (b) the collaborative lawyer reasonably believes that the safety of the party or
332 prospective party can be protected adequately during a process.
333 Section 16. Section 78B-19-116 is enacted to read:
334 78B-19-116. Confidentiality of collaborative law communication.
335 A collaborative law communication is confidential to the extent agreed by the parties in
336 a signed record or as provided by law of this state other than this chapter.

337 Section 17. Section 78B-19-117 is enacted to read:
338 78B-19-117. Privilege against disclosure for collaborative law communication --
339 Admissibility -- Discovery.
340 (1) Subject to Sections 78B-19-118 and 78B-19-119 , a collaborative law
341 communication is privileged under Subsection (2), is not subject to discovery, and is not
342 admissible in evidence.
343 (2) In a proceeding, the following privileges apply:
344 (a) a party may refuse to disclose, and may prevent any other person from disclosing, a
345 collaborative law communication; and
346 (b) a nonparty participant may refuse to disclose, and may prevent any other person
347 from disclosing, a collaborative law communication of the nonparty participant.
348 (3) Evidence or information that is otherwise admissible or subject to discovery does
349 not become inadmissible or protected from discovery solely because of its disclosure or use in
350 a collaborative law process.
351 Section 18. Section 78B-19-118 is enacted to read:
352 78B-19-118. Waiver and preclusion of privilege.
353 (1) A privilege under Section 78B-19-117 may be waived in a record or orally during a
354 proceeding if it is expressly waived by all parties and, in the case of the privilege of a nonparty
355 participant, it is also expressly waived by the nonparty participant.
356 (2) A person that makes a disclosure or representation about a collaborative law
357 communication which prejudices another person in a proceeding may not assert a privilege
358 under Section 78B-19-117 , but this preclusion applies only to the extent necessary for the
359 person prejudiced to respond to the disclosure or representation.
360 Section 19. Section 78B-19-119 is enacted to read:
361 78B-19-119. Limits of privilege.
362 (1) There is no privilege under Section 78B-19-117 for a collaborative law
363 communication that is:
364 (a) available to the public under Title 63G, Chapter 2, Government Records Access
365 and Management Act, or made during a session of a collaborative law process that is open, or
366 is required by law to be open, to the public;
367 (b) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

368 (c) intentionally used to plan a crime, commit or attempt to commit a crime, or conceal
369 an ongoing crime or ongoing criminal activity; or
370 (d) in an agreement resulting from the collaborative law process, evidenced by a record
371 signed by all parties to the agreement.
372 (2) The privileges under Section 78B-19-117 for a collaborative law communication do
373 not apply to the extent that a communication is:
374 (a) sought or offered to prove or disprove a claim or complaint of professional
375 misconduct or malpractice arising from or related to a collaborative law process; or
376 (b) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation
377 of a child or adult unless the Division of Child and Family Services or Division of Aging and
378 Adult Services, respectively, is a party to or otherwise participates in the process.
379 (3) There is no privilege under Section 78B-19-117 if a tribunal finds, after a hearing in
380 camera, that the party seeking discovery or the proponent of the evidence has shown the
381 evidence is not otherwise available, the need for the evidence substantially outweighs the
382 interest in protecting confidentiality, and the collaborative law communication is sought or
383 offered in:
384 (a) a court proceeding involving a felony; or
385 (b) a proceeding seeking rescission or reformation of a contract arising out of the
386 collaborative law process or in which a defense to avoid liability on the contract is asserted.
387 (4) If a collaborative law communication is subject to an exception under Subsection
388 (2) or (3), only the part of the communication necessary for the application of the exception
389 may be disclosed or admitted.
390 (5) Disclosure or admission of evidence excepted from the privilege under Subsection
391 (2) or (3) does not make the evidence or any other collaborative law communication
392 discoverable or admissible for any other purpose.
393 (6) The privileges under Section 78B-19-117 do not apply if the parties agree in
394 advance in a signed record, or if a record of a proceeding reflects agreement by the parties, that
395 all or part of a collaborative law process is not privileged. This Subsection (6) does not apply
396 to a collaborative law communication made by a person that did not receive actual notice of the
397 agreement before the communication was made.
398 Section 20. Section 78B-19-120 is enacted to read:

399 78B-19-120. Authority of tribunal in case of noncompliance.
400 (1) If an agreement fails to meet the requirements of Section 78B-19-104 , or a lawyer
401 fails to comply with Section 78B-19-114 or 78B-19-115 , a tribunal may nonetheless find that
402 the parties intended to enter into a collaborative law participation agreement if they:
403 (a) signed a record indicating an intention to enter into a collaborative law participation
404 agreement; and
405 (b) reasonably believed they were participating in a collaborative law process.
406 (2) If a tribunal makes the findings specified in Subsection (1), and the interests of
407 justice require, the tribunal may:
408 (a) enforce an agreement evidenced by a record resulting from the process in which the
409 parties participated;
410 (b) apply the disqualification provisions of Sections 78B-19-105 , 78B-19-106 ,
411 78B-19-109 , 78B-19-110 , and 78B-19-111 ; and
412 (c) apply the privileges under Section 78B-19-117 .
413 Section 21. Section 78B-19-121 is enacted to read:
414 78B-19-121. Uniformity of application and construction.
415 In applying and construing this uniform act, consideration shall be given to the need to
416 promote uniformity of the law with respect to its subject matter among states that enact it.
417 Section 22. Section 78B-19-122 is enacted to read:
418 78B-19-122. Relation to Electronic Signatures in Global and National Commerce
419 Act.
420 This chapter modifies, limits, and supersedes the federal Electronic Signatures in
421 Global and National Commerce Act, 15 U.S.C.A. Sec. 7001 et seq. (2009), but does not
422 modify, limit, or supersede Section 101(c) of that act, 15 U.S.C.A. Sec. 7001(c), or authorize
423 electronic delivery of any of the notices described in Sec. 103(b) of that act, 15 U.S.C.A. Sec.
424 7003(b).




Legislative Review Note
as of 1-19-10 10:50 AM

Office of Legislative Research and General Counsel