Thursday, March 20, 2014

Proposed Collaborative Law Legislation in Florida

By Sarah E. Kay

The collaborative practice of law is a voluntary dispute-resolution process in which the parties, their lawyers, and joint neutral experts follow procedures designed to promote an amicable resolution. The parties agree to litigate with new counsel and experts only if the collaborative process fails. The collaborative law movement has developed, grown, and gained momentum since its birth in the 1980s. A Uniform Collaborative Law Act was drafted in 2009, versions of which have been enacted by seven states and the District of Columbia.

Florida circuit courts in HillsboroughOrange and OsceolaMiami-Dade, and Brevard counties have administrative orders formalizing the law process within their jurisdictions. To date, Florida does not have a statewide collaborative rule or law, nor any collaboratively focused rules of professional conduct. 

The Family Law Section of the Florida Bar began considering a statewide collaborative rule or law around 2008 and has thereafter been working on collaborative legislation. The section has a standing position supporting the statutory recognition of collaborative law as a form of alternative dispute resolution in family law cases and the establishment of a privilege regarding the disclosure of information related to collaborative proceedings. 

Collaborative law bills were introduced for Florida’s 2014 legislative session in the Senate (Bill 1190) and the House of Representatives (Bill 1397). At the time this article was written, the bills were still pending subject to revisions. The bills, if passed, would amend Chapter 61 effective July 1, 2014, to establish definitions, procedures, and a privilege for the collaborative law process. The privilege would permit a party or non-party participant to refuse to disclose any collaborative law communication except in the event of a written waiver of privilege, threats of bodily injury or crime, malpractice actions, child or adult abuse, neglect or exploitation, or in a rescission or reformation proceeding of a collaboratively reached contract.  The proposed legislation does not address the mandatory disqualification of the collaborative attorney. Other state legislatures with similar proposed legislation include Illinois, Massachusetts, Michigan, New Jersey, Oklahoma, and South Carolina.  

The Florida Bar Rules Committee previously proposed a family law collaborative rule of procedure on which the Supreme Court declined to take action in light of “pending legislative efforts.” It is assumed that if the bills pass, the Supreme Court will take up review of the proposed rule.