PRINTER'S NO. 2199
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1644
Session of
2017
INTRODUCED BY KLUNK, CUTLER, MILLARD, PHILLIPS-HILL, WHEELAND,
LONGIETTI, BAKER, SCHEMEL, SAYLOR, MAHER, STEPHENS, WATSON,
ZIMMERMAN, KAUFFMAN, NESBIT, BRIGGS, MULLERY, KNOWLES, WARREN
AND JOZWIAK, JUNE 30, 2017
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 30, 2017
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, providing for
collaborative law process.
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 PROCESS
Sec.
7401. Short title and scope of chapter.
7402. Definitions.
7403. Beginning the collaborative law process.
7404. Assessment and review.
7405. Collaborative law participation agreement.
7406. Concluding the collaborative law process.
7407. Disqualification of collaborative attorney.
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7408. Disclosure of information.
7409. Confidentiality.
7410. Privilege.
7411. Professional responsibility.
§ 7401. Short title and scope of chapter.
(a) Short title.--This chapter shall be known and may be
cited as the Collaborative Law Act.
(b) Scope.--This chapter shall apply to a collaborative law
process between family members and arising from a participation
agreement that meets the requirements of section 7405 (relating
to collaborative law participation agreement).
§ 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:
"Collaborative communication." A statement or question that
concerns the collaborative law process or a collaborative matter
and that occurs after the parties sign a collaborative law
participation agreement but before the collaborative law process
is concluded. The term does not include a written settlement
agreement that is signed by all parties to the agreement.
"Collaborative law process." A procedure to resolve a claim,
transaction, dispute or issue without intervention by a
tribunal, in which procedure all parties sign a collaborative
law participation agreement, all parties are represented by
counsel and counsel is disqualified from representing the
parties in a proceeding before a tribunal.
"Collaborative matter." A dispute, transaction, claim or
issue for resolution that is described in a participation
agreement concerning any of the following:
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(1) Marriage, divorce and annulment.
(2) Property distribution, usage and ownership.
(3) Child custody, visitation and parenting time.
(4) Parentage.
(5) Alimony, alimony pendente lite, spousal support and
child support.
(6) Prenuptial, marital and postnuptial agreements.
(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).
"Family members." All of the following:
(1) Spouses and former spouses.
(2) Parents and children, including individuals acting
in loco parentis.
(3) Individuals currently or formerly cohabiting.
(4) Other individuals related by consanguinity or
affinity.
"Nonparty participant." A person other than a party or a
party's attorney that participates in the collaborative law
process. The term may include, but is not limited to, support
persons, mental health professionals, financial neutrals and
potential parties.
"Party." A person that signs a collaborative law
participation agreement and whose consent is necessary to
resolve a collaborative matter.
"Person." An individual, corporation, business trust,
estate, trust, partnership, limited liability company,
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association, joint venture, public corporation, government or
governmental subdivision, agency or instrumentality or any other
legal or commercial entity.
"Proceeding." A judicial, administrative, arbitral or other
adjudicative process before a tribunal.
"Related matter." A matter involving the same parties,
dispute, transaction, claim or issue as a collaborative matter.
"Tribunal." A court, arbitrator, administrative agency or
other body acting in an adjudicative capacity that has
jurisdiction to render a binding decision directly affecting a
party's interests in a matter.
§ 7403. Beginning the collaborative law process.
(a) Voluntariness.--Participation in a collaborative law
process is voluntary and may not be compelled by a tribunal. A
party may terminate the collaborative law process at any time
with or without cause.
(b) Commencement.--A collaborative law process shall begin
when the parties sign a collaborative law participation
agreement. Parties to a proceeding pending before a tribunal may
enter into a collaborative law process to resolve a matter
related to the proceeding.
§ 7404. Assessment and review.
(a) General assessment.--Before entering into a
collaborative law participation agreement, a prospective party
shall:
(1) Assess factors the prospective party's attorney
reasonably believes relate to whether the collaborative law
process is appropriate for the matter and for the parties,
including a prospective party or nonparty participant's
history, if any, of violent or threatening behavior.
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(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
collaborative law process, as compared with other
alternatives.
(b) Threatening or violent behavior.--
(1) Before a prospective party signs a collaborative law
participation agreement, an attorney shall inquire whether
the prospective party has a history of threatening or violent
behavior toward any party or nonparty participant who will be
part of the collaborative law process.
(2) If an attorney learns or reasonably believes, before
commencing or at any point in the collaborative law process,
that a party or prospective party has engaged in or has a
history of threatening or violent behavior toward any other
party or nonparty participant, the attorney may not begin or
continue the collaborative law process unless the party or
prospective party:
(i) Requests beginning or continuing the
collaborative law process.
(ii) Indicates that the safety of all parties to the
collaborative law process can be protected adequately
during the collaborative law process.
(c) Private cause of action.--An attorney's failure to
protect a party under this section shall not give rise to a
private cause of action against the attorney.
§ 7405. Collaborative law participation agreement.
(a) Requirements.--A collaborative law participation
agreement must:
(1) Be in writing.
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(2) Be signed by the parties.
(3) State the parties' intention to resolve a
collaborative matter through a collaborative law process.
(4) Describe the nature and scope of the collaborative
matter.
(5) Identify the attorney who represents each party in
the collaborative law process.
(6) Include a statement that the representation of each
attorney is limited to the collaborative law process and that
the attorneys are disqualified from representing any party or
nonparty participant in a proceeding related to a
collaborative matter, consistent with this chapter.
(b) Optional provisions.--Parties may include in a
collaborative law participation agreement additional provisions
not inconsistent with this chapter or other applicable law,
including, but not limited to:
(1) An agreement concerning confidentiality of
collaborative communications.
(2) An agreement that part or all of the collaborative
law process will not be privileged in a proceeding.
(3) The scope of voluntary disclosure.
(4) The role of nonparty participants.
(5) The retention and role of nonparty experts.
(6) The manner and duration of a collaborative law
process under section 7403 (relating to beginning the
collaborative law process) and 7406 (relating to concluding
the collaborative law process).
(c) Nonconforming agreements.--This chapter shall apply to
an agreement that does not meet the requirements of subsection
(a) if:
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(1) The agreement indicates an intent to enter into a
collaborative law participation agreement.
(2) The agreement is signed by all parties.
(3) A tribunal determines that the parties intended to
and reasonably believed that they were entering into a
collaborative law agreement subject to the requirements of
this chapter.
§ 7406. Concluding the collaborative law process.
(a) General rule.--A collaborative law process shall be
concluded by:
(1) Resolution of the collaborative matter, as evidenced
by a signed record.
(2) Resolution of a part of the collaborative matter and
agreement by all parties that the remaining parts of the
collaborative matter will not be resolved in the
collaborative law process, as evidenced by a signed record.
(3) Termination under subsection (b).
(4) A method specified in the collaborative law
participation agreement.
(b) Termination.--A collaborative law process shall be
terminated when:
(1) A party gives written notice to all parties that the
collaborative law process is terminated.
(2) A party begins or resumes a pending proceeding
before a tribunal related to a collaborative matter without
the agreement of all parties.
(3) Except as provided in subsection (c), a party
discharges the party's attorney or the attorney withdraws
from further representation of a party. An attorney who is
discharged or withdraws shall give prompt written notice to
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all parties and nonparty participants.
(c) Continuation.--Notwithstanding the discharge or
withdrawal of a collaborative attorney, a collaborative law
process shall continue if, not later than 30 days after the date
that the notice under subsection (b)(3) is sent, the
unrepresented party engages a successor attorney and the
participation agreement is amended to identify the successor
attorney.
§ 7407. Disqualification of collaborative attorney.
(a) Rule.--
(1) Except as provided in subsection (b), an attorney
who represents a party in a collaborative law process and any
law firm or government agency with which the attorney is
associated shall be disqualified from representing any party
or nonparty participant in a proceeding related to the
collaborative matter.
(2) Requesting the approval of a settlement agreement by
a tribunal shall be considered part of the collaborative law
process and not a related proceeding.
(b) Exception.--Disqualification under subsection (a) shall
not operate to prevent a collaborative attorney from seeking or
defending an emergency order to protect the health, safety or
welfare of a party or a family member.
§ 7408. Disclosure of information.
During the collaborative law process, parties shall provide
timely, full, candid and informal disclosure of information
related to the collaborative matter without formal discovery,
and shall update promptly previously disclosed information that
has materially changed.
§ 7409. Confidentiality.
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A collaborative law communication shall be confidential to
the extent provided by the laws of this Commonwealth or as
specified in the collaborative law participation agreement.
§ 7410. Privilege.
(a) General rule.--Except as otherwise provided in this
section, a collaborative communication is privileged, may not be
compelled through discovery and shall not be admissible as
evidence in an action or proceeding. Evidence that is otherwise
admissible and subject to discovery shall not become
inadmissible or protected from discovery solely because of its
disclosure or use in a collaborative law process.
(b) Waiver.--
(1) A party may waive a privilege belonging to the party
only if all parties waive the privilege and, in the case of a
communication by a nonparty participant, only if the nonparty
participant and all parties waive the privilege.
(2) If a party discloses a privileged collaborative
communication that prejudices another party, the disclosing
party waives the right to assert a privilege under this
section to the extent necessary for the party prejudiced to
respond to the disclosure or representation.
(c) Nonapplicability.--Privilege under subsection (a) shall
not apply to:
(1) A communication that is not subject to the privilege
by agreement of the parties according to the terms of a
participation agreement.
(2) A communication that is made during a session of a
collaborative law process that is open, or required by law to
be open, to the public.
(3) A communication sought, obtained or used to:
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(i) threaten or plan to inflict bodily injury,
commit or attempt to commit a crime; or
(ii) conceal ongoing criminal activity.
(d) Exceptions.--The following exceptions apply to the
privilege under subsection (a):
(1) A communication sought or offered to prove or
disprove facts relating to a claim or complaint of
professional misconduct or malpractice or a fee dispute.
(2) A communication sought or offered to prove facts
relating to the abuse, neglect, abandonment or exploitation
of a child or abuse of an adult.
(3) A communication sought or offered in a criminal
proceeding or in an action to enforce, void, set aside or
modify a settlement agreement where a tribunal or court of
competent jurisdiction finds that the evidence is not
otherwise available and the need for the evidence
substantially outweighs the interest in protecting the
privilege.
(e) Limitation.--
(1) If a collaborative communication is subject to an
exception under subsection (d), only the part of the
collaborative communication necessary for the application of
the exception may be disclosed or admitted.
(2) Disclosure or admission of evidence under subsection
(d) does not make the evidence or any other collaborative
communication discoverable or admissible for any other
purpose.
(f) Construction.--This section shall not be construed to
affect the scope of another applicable privilege under State law
or rule of court.
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§ 7411. Professional responsibility.
This chapter shall not affect the professional responsibility
obligations and standards applicable to an attorney or other
person professionally licensed or certified under State law.
Section 2. This act shall take effect in 60 days.
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