Collaborative Law Rules at Florida Supreme Court

Collaborative Law Rules Approved by Florida Supreme Court

On May 18, 2017, the Florida Supreme Court published an opinion approving collaborative law rules.  The collaborative law rules are the last step necessary before Florida’s Collaborative Law Process Act goes into effect.

The opinion approves Rule Regulating the Florida Bar 4-1.19 and Florida Family Law Rule of Procedure 12.745.

Rule Regulating the Florida Bar 4-1.19

Florida Bar Rule 4-1.19 is a rule of professional conduct.  It creates certain obligations of attorneys representing clients within the collaborative process.  Among other things, the rule requires collaborative lawyers to do the following when contemplating collaborative practice with a client:

  • Provide sufficient information about the benefits and risks of the collaborative process;
  • Explain alternatives to the collaborative process, including litigation and mediation;

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Collaborative Law Rules at Florida Supreme Court

Collaborative Law Rules Oral Arguments at Florida Supreme Court

On February 9, 2017, the Honorable Laurel M. Lee, Circuit Court Judge of the 13th Judicial Circuit in Hillsborough County and Chair of the Family Law Rules Committee of the Florida Bar Family Law Section, along with collaborative attorney Robert Merlin, Vice Chair of the Committee and a Board Member of the International Academy of Collaborative Professionals, stood before the Florida Supreme Court (video) to argue in favor of the adoption of collaborative law rules of procedure and professional conduct.

In 2016, Florida Governor Rick Scott signed into law the Collaborative Law Practice Act, but the Act does not go into effect until the Florida Supreme Court approves rules.  The Act creates a framework for collaborative family law, which is a private form of dispute resolution where attorneys focus solely on helping clients reach an out-of-court agreement.

Judge Lee explained to the Supreme Court Justices that the process is voluntary: “It is entirely a voluntary process by the litigants and families that choose to engage in the collaborative law process.  It can be terminated by either of the parties at any time.”

Judge Laurel Lee at Florida Supreme Court Arguing In Favor of Collaborative Law Rules

Judge Laurel Lee at Florida Supreme Court Arguing In Favor of Collaborative Law Rules

When asked if collaborative practice could help those with modest means, Judge Lee told the Supreme Court justices how she first came to learn about collaborative divorce:

“I first became aware of the collaborative process when a case came to my trial court in which all of the collaborative team – including the attorneys, the mental health professional, and the financial professional – had taken the case pro bono. I know in my circuit there is a group of collaborative professionals who take low cost or reduced fee cases so that parties do have access to this process even if they are not families of great financial means.”

Upon being asked by Justice Ricky Polston what effect collaborative practice has on mediation, Judge Lee replied, “They are not mutually exclusive.  Collaborative is a process that the parties can choose to engage in but does not preclude the use of any other alternative dispute resolution methods.  So [mediation] could certainly remain an option for litigants.”

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Harvard Law Professor David A. Hoffman Explains the Uniform Collaborative Law Act

Video: Harvard Law Professor Explains Uniform Collaborative Law Act

Last year, Florida Governor Rick Scott signed into law the Collaborative Law Process Act.  There are still some steps that need to be taken for the law to go into effect (namely, the Florida Supreme Court will need to establish rules of procedure and rules of professional conduct).  However, the collaborative community celebrated this milestone after a seven year effort by family law attorneys, mental health professionals, and financial professionals.

Uniform Collaborative Law Act

Florida’s Collaborative Law Process Act is based on the Uniform Collaborative Law Act (“UCLA”).  The UCLA is proposed legislation drafted by the National Conference of Commissioners on Uniform State Laws.  The Uniform Law Commission, as it is more commonly known, creates proposed legislation that it hopes states will adopt to bring consistency and clarity to different areas of the law.

Back in 2010, the American Bar Association House of Delegates was considering whether to support the UCLA.  In the video below made in 2009, Harvard Law Professor David A. Hoffman explains the UCLA.  He also advocates for the American Bar Association to support the UCLA.

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Proposed Collaborative Divorce Professional Conduct Rule Published in Florida Bar News

In March of 2016, Florida Governor Rick Scott signed into law the Collaborative Law Process Act (“CLPA”).  The CLPA, among other things, protects communications within the collaborative process so that participants can be more open in their discussions and can rest assured that proposals and comments made while trying to reach agreement cannot later be used against them.

However, the CLPA does not go into effect until after the Florida Supreme Court adopts Rules of Professional Conduct and Rules of Procedure.

Proposed rules have been approved by the Florida Board of Governors, and they have been published in the August 15, 2016 edition of the Florida Bar News for comment.  Once the comment period is over, the Florida Supreme Court will determine whether it will approve the rules.

You can find the proposed Rule of Professional Conduct (4-1.19) after the jump (the proposed Rule of Procedure is published in a separate post):

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Proposed Collaborative Law Procedural Rule Published in Florida Bar News

In March of 2016, Florida Governor Rick Scott signed into law the Collaborative Law Process Act (“CLPA”).  The CLPA, among other things, protects communications within the collaborative process so that participants can be more open in their discussions and can rest assured that proposals and comments made while trying to reach agreement cannot later be used against them.

However, the CLPA does not go into effect until after the Florida Supreme Court adopts Rules of Professional Conduct and Rules of Procedure.

Proposed rules have been approved by the Florida Board of Governors, and they have been published in the August 15, 2016 edition of the Florida Bar News for comment.  Once the comment period is over, the Florida Supreme Court will determine whether it will approve the rules.

You can find the proposed Family Law Rule of Procedure (12.475) after the jump (the Rule of Conduct is published in a separate post):

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Collabortive Professionals Honor Florida Legislators

Two hundred members of the Florida Academy of Collaborative Professionals (“FACP”) gathered in Tampa to honor Florida legislators and others for their leadership in passing the Collaborative Law Process Act (“CLPA”).  The CLPA, among other things, protects the privacy of families going through divorce.  It creates a statutory privilege (like the attorney-client privilege) that, except under limited circumstances, ensures that what is said during a collaborative divorce process cannot be used against a spouse in court.

In 2016, Senator Tom Lee introduced the CLPA bill in the Florida Senate.  Representative Cyndi Stevenson, with the support of Representative Dana Young, introduced a version in Florida’s House of Representatives.  All three were given awards by Florida’s statewide collaborative organization for helping to protect Florida’s families via the CLPA.

 

 

Pictured, from left to right, are Senator Tom Lee, Cole Jeffries, Robert Merlin, Judge Laurel Lee, Representative Dana Young, and Representative Cyndi Stevenson.

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2016 Florida Alimony Reform Bill Vetoed

The Tampa Bay Times is reporting that Florida Governor Rick Scott has vetoed SB 668, a bill that was intended to make large-scale changes to the state’s alimony and child custody laws.

Rick Scott (cropped).jpg

For the first time, the bill was set to create alimony guidelines that calculated a presumptive range for the amount and length of spousal support.  Further, the bill would have directed judges, when establishing custody schedules, to start out with the premise that each parent should have approximately an equal amount of time with children.

It was that second point that seemed to be the sticking point for Governor Scott.

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Tampa Tribune Publishes Cordover Letter on Collaborative Divorce

The March 31, 2016 edition of the Tampa Tribune published a Letter to the Editor penned by Family Diplomacy Managing Attorney Adam B. Cordover on the newly signed Florida Collaborative Law Process Act (“CLPA”).  You can find the Letter to the Editor below:

LETTER OF THE DAY:  TAKING THE FIGHTING OUT OF DIVORCE

Recent bills passed by the Florida Legislature reforming alimony and changing child time-sharing laws have received a lot of attention, but something that has flown under the radar is the passage of the Collaborative Law Process Act (CLPA). Gov. Rick Scott signed the bill on March 24 after a seven-year effort by licensed mental health counselors, marriage and family therapists, psychologists and other family advocates.

 

The CLPA applies to divorce and other family law matters, and it creates a uniform system for the practice of collaborative law (also sometimes referred to as collaborative divorce, collaborative practice or the collaborative process).

The goal of collaborative law is to take the fighting out of divorce. Each spouse retains an attorney for the sole purpose of reaching an out-of-court agreement. Collaborative attorneys are barred from wasting any of the clients’ energy, time or money on opposition research, discovery motions or preparing for trial.

Collaborative law often involves a neutral facilitator with a mental health licensure. This is in recognition of the fact that divorce is not just a legal process, but it is predominately an emotional process. The facilitator helps parents learn to communicate and focus on what is most important to them, such as the health and welfare of their children.

Governor Scott Signs Florida Collaborative Divorce Bill Into Law

On March 24, 2016, Florida Governor Rick Scott signed HB 967, the “Collaborative Law Process Act,” making Florida the 14th state to have Collaborative Divorce codified in its laws.

Collaborative Divorce is a private form of dispute resolution where the parties agree from the outset to settle all matters outside of court.  Each party has his or her own attorney, and the attorneys are there solely to help the parties reach an agreement that is tailored for that family.  The attorneys are forbidden from engaging in opposition research or preparing for costly trials.

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Collaborative Law Process Act Protects Families’ Privacy

Last Friday, the Florida Senate passed its version of HB-967, the Collaborative Law Process Act, priming Florida to become the 14th state to pass a version of the Uniform Collaborative Law Act.

The bill, which was voted on in the Florida Senate by 39-0 after passing the Florida House last month by 117-0, is now enrolled and expected to be signed by the governor.  At the earliest, the Collaborative Law Process Act becomes binding on July 1, 2016.  However, it may take longer, as the bill itself states that it will not go into effect until 30 days after the Florida Supreme Court adopts Rules of Procedure and Rules of Professional Responsibility consistent with the bill.  It is my understanding that proposed rules have been provided or will be provided to the Supreme Court.

[Update: On March 24, 2016, Governor Scott Signed the Collaborative Law Process Act]

The Collaborative Law Process Act, which applies to divorce, paternity, and other family law matters, does several things:

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