Jennifer A. Bradley, JD and Michael J. McHugh, JD
The Uniform Collaborative Law Act (UCLA) was adopted by the Virginia General Assembly this year and will become effective July 1, 2021.1 Even if you do not practice Collaborative law, Virginia’s Rules of Professional Conduct require lawyers to explain to clients all of the process options for resolving their matter, and for family law matters, that now includes the Collaborative law process. Comment 1 under Rule 1.2 provides that when consulting about process options, “. . . . a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives.” 2 Similarly, Rule 1.4 provides in part: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The Virginia State Bar has interpreted this Rule to include a continuing duty to advise a client about the availability of dispute resolution processes throughout the representation that might be more appropriate to the client’s goals, even when a different process has already been started.3
Collaborative law is a voluntary alternative dispute resolution process where the parties make a written commitment to negotiate a mutually acceptable resolution without the threat of pending litigation. With specific exceptions, to create a safe environment for settlement negotiations, the Collaborative law process specifically prohibits the Collaborative lawyers in the matter from representing either party if the case proceeds to litigation or arbitration. The clients also commit to engage in confidential negotiations driven by the interests and needs of the family, and to voluntarily disclose all relevant information.
Collaborative law is currently practiced in all 50 states and in 25 countries, and the UCLA has been adopted in 19 other states and the District of Columbia. As of the writing of this article, UCLA legislation is also pending approval by the legislatures of Colorado, New Hampshire and Missouri. The UCLA regulates the practice of Collaborative law and establishes mandatory protocols that must be followed by Collaborative lawyers. The key provisions of the UCLA as adopted in Virginia are:
- The parties must sign a Collaborative participation agreement that identifies their Collaborative lawyers, the nature and scope of the matter, and confirms their intention to reach a resolution using the Collaborative law process.
- Parties in a Collaborative law process must voluntarily disclose all information relevant to the issues in dispute, and promptly update any previously disclosed information that has materially changed.
- Before a party signs a Collaborative participation agreement, his or her Collaborative lawyer must explain:
- why the lawyer believes the Collaborative law process is appropriate for the party’s particular case;
- the benefits and risks of the Collaborative law process as compared to the benefits and risks of other alternatives such as litigation, mediation, arbitration, etc.;
- how the Collaborative law process is terminated;
- that the Collaborative lawyer and other lawyers in his/her firm are disqualified from representing the party in court if the Collaborative law process is terminated without a full settlement of all issues in dispute.
- If there is a history of family abuse between the parties, they should not engage in the Collaborative law process unless:
- the abused party requests beginning or continuing the process; and
- the Collaborative lawyer reasonably believes that the safety of the abused party can be protected during the process.
- The Collaborative law process begins when the parties have both signed a Collaborative participation agreement. The Collaborative law process ends when:
- the parties have resolved all issues in dispute;
- the parties have resolved some issues and agree that the remaining issues will be resolved outside of the Collaborative law process;
- a party decides to terminate the process, with or without cause; or
- a party unilaterally initiates court proceedings against the other party or proceeds with court proceedings that were previously stayed.
- In a manner similar to mediation and settlement negotiations, communications made by the parties and professionals during the Collaborative law process are confidential and not admissible in court, except:
- Statements relating to a plan to inflict bodily harm or commit a crime are not privileged;
- Statements offered to prove or disprove abuse or neglect of a child or adult are not privileged;
- Statements offered to prove or disprove a claim of professional misconduct or malpractice related to the Collaborative law process are not privileged; and
- Information that is otherwise subject to discovery does not become inadmissible in a court proceeding solely because of its disclosure in a Collaborative law process.
- Parties may discharge their Collaborative lawyers for any reason, and Collaborative lawyers may withdraw from their representation at any time. If this occurs, the Collaborative law process may continue if a successor Collaborative lawyer is engaged within 30 days.
- Once a Collaborative participation agreement has been signed, Collaborative lawyers—and other lawyers associated with their law firms—are disqualified from representing their clients in a court proceeding related to the Collaborative matter, except:
- to seek incorporation of a Collaborative settlement agreement into a court order;
- to ask a court to enter any order necessary to effectuate the terms of any agreement resulting from the Collaborative law process;
- to seek or defend an emergency order to protect the health, safety, welfare, or interest of a party or a party’s family or household member—only if a successor lawyer is not immediately available to represent such person, and only until:
- a successor lawyer is available; or
- reasonable measures are taken to protect the health, safety, welfare, or interest of the person.
- If a party is qualified for free legal representation under the criteria established by a Collaborative lawyer’s firm, another lawyer associated with the firm may represent the party in subsequent litigation for free, provided that:
- the Collaborative participation agreement so provides for such subsequent representation; and
- the Collaborative lawyer is isolated from any further participation in the matter as soon as the Collaborative law process ends.
- The standards of professional responsibility of lawyers and other licensed professionals are not changed by their participation in the Collaborative law process, including an obligation to report the abuse or neglect of a child or adult.
- If the parties are in the midst of litigation, they may apply for a stay of the proceedings by signing a Collaborative participation agreement and filing a notice of the same with the Court. If the Court does not grant a stay, the parties must file a nonsuit before the Collaborative law process can continue.
The use of Collaborative law was approved by the American Bar Association’s Standing
Committee on Ethics and Professional Responsibility in 2007, 4 and the American Academy of
Matrimonial Lawyers (AAML) has described Collaborative law as an important dispute resolution process that is consistent with the AAML’s Bounds of Advocacy. 5 In addition to express statutory authorization, limited scope representations such as the Collaborative law process are authorized under Rule 1.2. 6
According to the International Academy of Collaborative Professionals (IACP), 87% of Collaborative divorce cases settle in the Collaborative law process and an additional 3% result in reconciliation. 7
Collaborative law establishes a process whereby lawyers can assist their clients in respectful, non-adversarial dispute resolution. In the same manner as mediation, the Collaborative law process promotes problem-solving using interest-based negotiations and often results in mutually beneficial solutions that cannot be obtained from litigation or arbitration. The resulting benefits include:
- reduced conflict and improved co-parenting relationships;
- children are less likely to be negatively impacted by parental conflict;
- both financial and emotional costs are likely reduced; and
- resolution results in durable agreements, with the parties being less likely to seek future court modifications of custody and support.
The UCLA offers Virginia families a safe and confidential process in which they can resolve their family matters without the intervention of court. As an added benefit, increasing the practice of Collaborative law in the Commonwealth will decrease the number of families seeking assistance from the judicial system, resulting in a reduction of the courts’ domestic caseloads, and allowing judges more time to prioritize criminal dockets and expedite the scheduling of criminal hearings and trials.
More information about Collaborative divorce can be found on the websites of the Virginia Collaborative Professionals (www.vacollaborativepractice.com) and the International Academy of Collaborative Professionals (www.collaborativepractice.com).
- The UCLA will be incorporated into the Virginia Code as Title 20, Chapter 11, Sections 20-168 through 20-187.
- See Comment [1] following Rule 1.2: https://www.vsb.org/pro-guidelines/index.php/rules/client-lawyer-relationship/rule1-2/
- 3 See Comment [1] following Rule 1.4: https://www.vsb.org/pro-guidelines/index.php/rules/client-lawyer-relationship/rule1-4/
- See Formal Opinion #07-447, “Ethical Considerations in Collaborative Law Practice”: https://globalcollaborativelaw.com/wp-content/uploads/2017/07/Ethics_Opinion_ABA.pdf
- https://cdn.ymaws.com/aaml.org/resource/resmgr/bookstore/bounds_of_advocacy.pdf
- See Comment [6] following Rule 1.2: https://www.vsb.org/pro-guidelines/index.php/rules/client-lawyer-relationship/rule1-2/
- https://www.collaborativepractice.com/
