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PRINTER'S NO. 3992
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2392
Session of
2015
INTRODUCED BY KLUNK, BAKER, CUTLER, DAVIS, GIBBONS, HARHAI,
A. HARRIS, MILLARD, RADER AND SAYLOR, OCTOBER 5, 2016
REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 5, 2016
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, providing for
collaborative law.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 42 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 74
COLLABORATIVE LAW
Sec.
7401. Scope of chapter.
7402. Definitions.
7403. Applicability.
7404. Collaborative law participation agreement.
7405. Beginning a collaborative law process.
7406. Concluding a collaborative law process.
7407. Disqualification or withdrawal of collaborative lawyer.
7408. Disclosure of information.
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7409. Professional responsibility.
7410. Confidentiality.
7411. Privilege.
7412. Waiver of privilege.
7413. Limits of privilege.
7414. Appropriateness of collaborative law process.
7415. Coercive or violent relationship.
7416. Relation to Electronic Signatures in Global and National
Commerce Act.
§ 7401. Scope of chapter.
This chapter relates to collaborative law.
§ 7402. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Attorney." An attorney at law.
"Collaborative law communication." A statement, whether oral
or in a record, or verbal or nonverbal, which is made in the
course of a collaborative law process and occurs after the
parties sign a collaborative law participation agreement, but
before the collaborative law process is concluded.
"Collaborative law matter." A dispute, claim or issue which
is described in a participation agreement among family members.
The term includes:
(1) Marriage, divorce, dissolution and annulment.
(2) Property distribution, usage and ownership.
(3) Child custody and child visitation.
(4) Parentage.
(5) Alimony, alimony pendente lite and child support.
(6) Prenuptial, marital and postnuptial agreements.
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(7) Adoption.
(8) Termination of parental rights.
(9) A matter arising under 20 Pa.C.S. (relating to
decedents, estates and fiduciaries).
(10) A matter arising under 15 Pa.C.S. Pt. II (relating
to corporations).
"Collaborative law participation agreement." An agreement by
the parties to participate in a collaborative law process to
resolve their collaborative law matter.
"Collaborative law process." A procedure to resolve a claim,
dispute or issue among family members without intervention by a
tribunal entered into by persons that:
(1) sign a collaborative law participation agreement;
and
(2) are represented by collaborative lawyers.
"Collaborative lawyer." An attorney who represents a party
in a collaborative law process and whom the party acknowledges
to be retained for that limited purpose.
"Family members." Individuals who have a relationship to
each other by any of the following:
(1) Marriage.
(2) Blood.
(3) Adoption.
(4) Cohabitation. This paragraph only applies if the
parties agree in the collaborative law participation
agreement that they were cohabiting with one another.
(5) Sharing a biological relationship to a child in a
dispute, claim or issue involving the child.
(6) An in loco parentis relationship to a child by one
of the parties to a dispute, claim or issue involving the
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child. This paragraph only applies if the parties agree in
the collaborative law participation agreement that the party
that is not biologically related to the child has established
an in loco parentis relationship with the child.
"Law firm." A group of attorneys who:
(1) practice together in a partnership, professional
corporation, sole proprietorship, limited liability company
or association; or
(2) are employed in:
(i) a legal services organization;
(ii) the legal department of a corporation or other
organization; or
(iii) a government legal department.
"Nonparty participant." A person other than a party and the
party's collaborative lawyer, that participates in a
collaborative law process.
"Participant." Attorneys, parties and nonparty participants.
"Party." A person that signs a collaborative law
participation agreement and whose consent is necessary to
resolve a collaborative law matter under this chapter.
"Proceeding." A proceeding before a tribunal.
"Prospective party." A person that discusses with a
prospective collaborative lawyer the possibility of signing a
collaborative law participation agreement.
"Record." Information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is
retrievable in perceivable form.
"Related to the collaborative law matter." Involving the
same parties, transaction or occurrence, nucleus of operative
fact, dispute, claim, matter or issue as the collaborative law
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matter.
"Settlement agreement." A signed agreement entered into by
the parties to a collaborative law participation agreement which
sets forth a resolution of the parties' collaborative law
matter.
"Sign." With present intent to authenticate or adopt a
record to:
(1) execute or adopt a tangible symbol; or
(2) attach to or logically associate with the record an
electronic symbol, sound or process.
"Tribunal." Any court, arbitrator, administrative agency or
other body acting in an adjudicative capacity which, after
presentation of evidence or legal argument, has jurisdiction to
render a decision affecting a party's interests in a matter.
§ 7403. Applicability.
(a) Date.--This chapter shall apply to an agreement under
subsection (b) or (c) which is signed on or after the effective
date of this section.
(b) Collaborative law participation agreement.--This chapter
shall apply to a collaborative law participation agreement which
meets the requirements of section 7404 (relating to
collaborative law participation agreement).
(c) Other agreements.--
(1) Even though an agreement fails to meet the
requirements of section 7404, a tribunal may determine that
the parties intended to enter into a collaborative law
participation agreement if it finds that the parties:
(i) signed a record indicating an intention to enter
into a collaborative law participation agreement; and
(ii) reasonably believed they were participating in
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a collaborative law process.
(2) If a tribunal makes a determination under paragraph
(1), this chapter shall apply to the agreement.
§ 7404. Collaborative law participation agreement.
(a) Requirements.--A collaborative law participation
agreement must comply with all of the following:
(1) Be in a record.
(2) Be signed by the parties.
(3) State the parties' intention to resolve a
collaborative law matter through a collaborative law process
under this chapter.
(4) Describe the nature and scope of the collaborative
law matter.
(5) Identify the collaborative lawyer who represents
each party in the collaborative law process.
(6) Contain a statement that a collaborative lawyer's
role is limited under this chapter, consistent with the
Rules of Professional Conduct.
(7) Set forth the manner and duration of a collaborative
law process under sections 7405 (relating to beginning a
collaborative law process) and 7406 (relating to concluding a
collaborative law process).
(8) State that:
(i) a collaborative law communication of a party or
a nonparty participant is confidential and subject to an
evidentiary privilege under this chapter; and
(ii) the privilege under subparagraph (i) may be
waived only expressly and by:
(A) every party; and
(B) every nonparty participant that has the
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right to exercise the privilege.
(9) State that:
(i) the conduct of the collaborative lawyer is
governed by this chapter and rules of court under section
1722 (relating to adoption of administrative and
procedural rules); and
(ii) this chapter does not alter the collaborative
lawyer's responsibilities to the client under the rules
under subparagraph (i).
(b) Optional provisions.--Parties may agree to include in a
collaborative law participation agreement additional provisions
not inconsistent with this chapter or other applicable law.
§ 7405. Beginning a collaborative law process.
(a) Signing.--A collaborative law process begins when the
parties sign a collaborative law participation agreement.
(b) Voluntary.--Participation in a collaborative law process
is voluntary and may not be compelled by a tribunal.
(c) Related matters.--Subject to section 7406(b)(2)(ii)
(relating to concluding a collaborative law process), parties in
a proceeding pending before a tribunal may sign a collaborative
law participation agreement to seek to resolve a collaborative
law matter related to the proceeding.
§ 7406. Concluding a collaborative law process.
(a) Methods.--A collaborative law process is concluded by
any of the following:
(1) Except as set forth in subsection (c)(1),
resolution, as evidenced by a signed record:
(i) of the collaborative law matter; or
(ii) of a part of the collaborative law matter, with
an agreement by all parties that the remaining parts of
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the collaborative law matter will not be resolved in the
collaborative law process.
(2) Termination under subsection (b).
(3) A method set forth in the collaborative law
participation agreement.
(b) Termination.--A collaborative law process is terminated,
with or without cause, by any of the following:
(1) A party gives notice to all parties and nonparty
participants in a record that the collaborative law process
is ended.
(2) A party acts under either of the following
subparagraphs:
(i) Begins a proceeding related to a collaborative
law matter without the agreement of all parties.
(ii) In a pending proceeding related to the
collaborative law matter:
(A) initiates a pleading, motion, order to show
cause or request for a conference with the tribunal;
(B) requests that the proceeding be put on the
tribunal's active calendar; or
(C) takes similar action requiring notice to be
sent to all parties and nonparty participants.
(3) Except as set forth in subsection (c)(2), a party
discharges a collaborative lawyer or a collaborative lawyer
withdraws from further representation of a party. The
collaborative lawyer shall give prompt notice to all other
parties and nonparty participants in a record.
(c) Continuation.--
(1) A collaborative law process does not conclude if,
with the consent of all parties, a party requests, in a
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signed record, a tribunal to approve a resolution under
subsection (a)(1).
(2) Notwithstanding the discharge or withdrawal of a
collaborative lawyer, a collaborative law process shall
continue if, not later than 30 days after the date that the
notice under subsection (b)(3) is sent, all of the following
apply:
(i) The unrepresented party engages a successor
collaborative lawyer.
(ii) In a signed record:
(A) all parties consent to continue the
collaborative law process by reaffirming the
collaborative law participation agreement;
(B) the collaborative law participation
agreement is amended to identify the successor
collaborative lawyer; and
(C) the successor collaborative lawyer confirms
his representation of a party in the collaborative
law process.
§ 7407. Disqualification or withdrawal of collaborative lawyer.
(a) Related proceedings.--Except as set forth in subsection
(b), the following apply:
(1) A collaborative lawyer is disqualified from
appearing before a tribunal to represent a party in a
proceeding related to the collaborative law matter.
(2) An attorney 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 law matter if the
collaborative lawyer is disqualified under paragraph (1).
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(b) Exception.--Notwithstanding subsection (a), a
collaborative lawyer or an attorney in a law firm with which the
collaborative lawyer is associated may represent a party to do
any of the following:
(1) Ask a tribunal to approve an agreement resulting
from the collaborative law process.
(2) Seek or defend an emergency order to protect the
health, safety, welfare or interest of a party or a family
member related to that party in an action involving the other
party if a successor collaborative lawyer is not immediately
available to represent that party or family member.
Representation under this paragraph may continue only until
the party or family member is represented by a successor
collaborative lawyer or reasonable measures are taken to
protect the health, safety, welfare or interest of the party
or family member.
§ 7408. Disclosure of information.
Except as provided by statute other than this chapter, during
the collaborative law process, the following apply:
(1) A party shall provide timely, full, candid and
informal disclosure of information related to the
collaborative law matter without formal discovery.
(2) A party shall update promptly previously disclosed
information which has materially changed.
(3) Parties may define the scope of disclosure during
the collaborative law process.
§ 7409. Professional responsibility.
This chapter does not affect any of the following:
(1) Professional responsibility obligations and
standards applicable to:
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(i) an attorney; or
(ii) a person professionally licensed or certified
under State law.
(2) The statutory obligation of a person to report abuse
or neglect of a child or adult.
§ 7410. Confidentiality.
A collaborative law communication is confidential to the
extent agreed to by the parties in a signed record or as
provided by the laws of this Commonwealth.
§ 7411. Privilege.
(a) Establishment.--In a proceeding, the following
privileges are in addition to application of the attorney-client
privilege provided by the laws of this Commonwealth:
(1) A party may refuse to disclose, and may prevent any
other person from disclosing, a collaborative law
communication.
(2) A nonparty participant may refuse to disclose, and
may prevent any other person from disclosing, a collaborative
law communication of the nonparty participant.
(b) Effect.--
(1) Subject to sections 7412 (relating to waiver of
privilege) and 7413 (relating to limits of privilege), a
collaborative law communication made by a party or a nonparty
participant is privileged under subsection (a), is not
subject to discovery and is not admissible in evidence.
(2) Evidence that is otherwise admissible, readily
available from other sources or subject to discovery does not
become inadmissible or protected from discovery solely
because of its disclosure or use in a collaborative law
process.
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(c) Standing.--
(1) A privilege under this section may be claimed by:
(i) the party or nonparty participant in person; or
(ii) if the party or nonparty participant is
incapacitated or deceased, by a guardian or personal
representative.
(2) If a corporation, association or other legal entity
is the nonparty participant claiming a privilege under this
section and is no longer in existence, its successor in
interest may claim the privilege.
(3) A person that discloses or makes a representation
about a collaborative law communication which prejudices
another person in a proceeding is precluded from asserting a
privilege under this section to the extent necessary for the
person prejudiced to respond to the disclosure or
representation.
§ 7412. Waiver of privilege.
A privilege under section 7411 (relating to privilege) may be
waived in a record or orally during a proceeding if it is
expressly waived by the party or nonparty participant entitled
to assert the privilege.
§ 7413. Limits of privilege.
(a) Exclusions.--There is no privilege under section 7411
(relating to privilege) if any of the following paragraphs
apply:
(1) The collaborative law communication is made during a
session of a collaborative law process which is open, or
required by law to be open, to the public.
(2) The collaborative law communication is sought,
obtained or used to:
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(i) threaten or plan to inflict bodily injury;
(ii) commit or attempt to commit a crime; or
(iii) conceal ongoing criminal activity.
(3) The collaborative law communication is:
(i) made in a settlement agreement resulting from
the collaborative law process; and
(ii) evidenced by a record signed by all parties to
the settlement agreement.
(4) Subject to subsection (b), the collaborative law
communication is sought or offered to prove or disprove any
of the following:
(i) A claim or complaint of professional misconduct
or malpractice.
(ii) The unreasonableness of a collaborative fee of
a collaborative lawyer or other professional arising from
or related to a collaborative law process.
(iii) Abuse, neglect, abandonment or exploitation of
a child or adult, unless the appropriate protective
services agency is a party or a nonparty participant.
(5) Subject to subsection (b), a tribunal finds after a
hearing in camera that the party seeking discovery or the
proponent of the evidence has shown that:
(i) the evidence is not otherwise available;
(ii) the need for the evidence substantially
outweighs the interest in protecting confidentiality; and
(iii) the collaborative law communication is sought
or offered in:
(A) a court proceeding involving a crime; or
(B) a proceeding in which:
(I) rescission or reformation of a contract
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arising out of the collaborative law process is
sought; or
(II) a defense to avoid liability on a
contract arising out of the collaborative law
process is asserted.
(6) The parties agree in advance in a signed record that
all or part of a collaborative law process is not privileged.
(b) Limitation.--
(1) If a collaborative law communication is excluded
under subsection (a)(4) or (5), only the part of the
collaborative law communication necessary for the application
of the exclusion may be disclosed or admitted.
(2) Disclosure or admission of evidence under paragraph
(1) does not make the evidence or any other collaborative law
communication discoverable or admissible for any other
purpose.
§ 7414. Appropriateness of collaborative law process.
(a) Assessment and review.--To the extent permitted under 42
Pa.C.S. §§ 5916 (relating to confidential communications to
attorney) and 5928 (relating to confidential communications to
attorney), the attorney work product doctrine and the Rules of
Professional Conduct, b efore a prospective party signs a
collaborative law participation agreement, the participants in a
collaborative process shall:
(1) a ssess factors the attorney reasonably believes
relate to whether a collaborative law process is appropriate
for the matter; and
(2) review information that the attorney reasonably
believes is sufficient for the prospective party to make an
informed decision about the material benefits and risks of a
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collaborative law process as compared to the material
benefits and risks of other reasonably available alternatives
for resolving the proposed collaborative matter, such as
litigation, mediation, arbitration or expert evaluation.
(b) Advice.--An attorney shall advise a prospective party
that:
(1) after signing an agreement, if a party initiates a
proceeding or seeks tribunal intervention in a pending
proceeding related to the collaborative matter, the
collaborative law process terminates;
(2) participation in a collaborative law process is
voluntary, and any party has the right to terminate
unilaterally a collaborative law process with or without
cause; and
(3) the collaborative lawyer and any attorney 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.
§ 7415. Coercive or violent relationship.
(a) Declaration of policy.--To the extent permitted under 42
Pa.C.S. §§ 5916 (relating to confidential communications to
attorney) and 5928 (relating to confidential communications to
attorney), the attorney work product doctrine and the Rules of
Professional Conduct , the following apply:
(1) Before a prospective party signs a collaborative law
participation agreement, an attorney shall make reasonable
inquiry whether the prospective party has a history of a
coercive or violent relationship with any party who will be
part of the collaborative law process.
(2) Throughout a collaborative law process, a
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collaborative lawyer shall reasonably assess whether the
party the collaborative lawyer represents has a history of a
coercive or violent relationship with any party who will be
part of the collaborative law process.
(3) If an attorney reasonably believes that a party or
prospective party has a history of a coercive or violent
relationship with any party who will be part of the
collaborative law process, the attorney may not begin or
continue a collaborative law process unless the party or
prospective party:
(i) requests beginning or continuing a process; and
(ii) indicates that the safety of all parties to the
collaborative law process can be protected adequately
during the process.
( b) Private cause of action.--An attorney's failure to
protect a party under this section does not give rise to a
private cause of action against the attorney.
§ 7416. Relation to Electronic Signatures in Global and
National Commerce Act.
To the extent permitted by section 102 of the Electronic
Signatures in Global and National Commerce Act (Public Law 106-
229, 15 U.S.C. § 7002 ), this chapter may supersede provisions of
that act.
Section 2. This act shall take effect in 60 days.
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