State of Illinois
2011 and 2012


Introduced 1/2/2013, by Sen. Martin A. Sandoval


New Act

    Creates the Uniform Collaborative Law Act. Defines terms. Provides that the provisions of the Act are applicable to collaborative law participation agreements that meet the requirements of the Act signed on or after the effective date of the Act. Contains provisions concerning: requirements of collaborative law agreements; the beginning and conclusion of the collaborative law process; proceedings before a tribunal; disqualification of collaborative lawyers; disclosure of information; standards of professional responsibility and mandatory reporting; procedures for protecting parties from violent or coercive behavior; confidentiality; privileges; the authority of a tribunal if a collaborative agreement does not meet the requirements of the Act; uniformity of application and construction; and the Act's relation to the federal Electronic Signatures in Global and National Commerce Act.

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SB3943LRB097 23493 HEP 72441 b

1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Uniform Collaborative Law Act.
6    Section 2. Definitions. In this Act:
7    (1) "Collaborative law communication" means a statement,
8whether oral or in a record, or verbal or nonverbal, that:
9        (A) is made to conduct, participate in, continue, or
10    reconvene a collaborative law process; and
11        (B) occurs after the parties sign a collaborative law
12    participation agreement and before the collaborative law
13    process is concluded.
14    (2) "Collaborative law participation agreement" means an
15agreement by persons to participate in a collaborative law
17    (3) "Collaborative law process" means a procedure intended
18to resolve a collaborative matter without intervention by a
19tribunal in which persons:
20        (A) sign a collaborative law participation agreement;
21    and
22        (B) are represented by collaborative lawyers.
23    (4) "Collaborative lawyer" means a lawyer who represents a



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1party in a collaborative law process.
2    (5) "Collaborative matter" means a dispute, transaction,
3claim, problem, or issue for resolution, including a dispute,
4claim, or issue in a proceeding, which is described in a
5collaborative law participation agreement and arises under the
6family or domestic relations law of this State, including:
7        (A) marriage, divorce, dissolution, annulment, and
8    property distribution;
9        (B) child custody, visitation, and parenting time;
10        (C) alimony, maintenance, and child support;
11        (D) adoption;
12        (E) parentage; and
13        (F) premarital, marital, and post-marital agreements.
14    (6) "Law firm" means:
15        (A) lawyers who practice law together in a partnership,
16    professional corporation, sole proprietorship, limited
17    liability company, or association; and
18        (B) lawyers employed in a legal services organization,
19    or the legal department of a corporation or other
20    organization, or the legal department of a government or
21    governmental subdivision, agency, or instrumentality.
22    (7) "Nonparty participant" means a person, other than a
23party and the party's collaborative lawyer, that participates
24in a collaborative law process.
25    (8) "Party" means a person that signs a collaborative law
26participation agreement and whose consent is necessary to



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1resolve a collaborative matter.
2    (9) "Person" means an individual, corporation, business
3trust, estate, trust, partnership, limited liability company,
4association, joint venture, public corporation, government or
5governmental subdivision, agency, or instrumentality, or any
6other legal or commercial entity.
7    (10) "Proceeding" means:
8        (A) a judicial, administrative, arbitral, or other
9    adjudicative process before a tribunal, including related
10    prehearing and post-hearing motions, conferences, and
11    discovery; or
12        (B) a legislative hearing or similar process.
13    (11) "Prospective party" means a person that discusses with
14a prospective collaborative lawyer the possibility of signing a
15collaborative law participation agreement.
16    (12) "Record" means information that is inscribed on a
17tangible medium or that is stored in an electronic or other
18medium and is retrievable in perceivable form.
19    (13) "Related to a collaborative matter" means involving
20the same parties, transaction or occurrence, nucleus of
21operative fact, dispute, claim, or issue as the collaborative
23    (14) "Sign" means, with present intent to authenticate or
24adopt a record:
25        (A) to execute or adopt a tangible symbol; or
26        (B) to attach to or logically associate with the record



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1    an electronic symbol, sound, or process.
2    (15) "Tribunal" means:
3        (A) a court, arbitrator, administrative agency, or
4    other body acting in an adjudicative capacity which, after
5    presentation of evidence or legal argument, has
6    jurisdiction to render a decision affecting a party's
7    interests in a matter; or
8        (B) a legislative body conducting a hearing or similar
9    process.
10    Section 3. Applicability. This Act applies to a
11collaborative law participation agreement that meets the
12requirements of Section 4 signed on or after the effective date
13of this Act.
14    Section 4. Collaborative law participation agreement;
16    (a) A collaborative law participation agreement must:
17        (1) be in a record;
18        (2) be signed by the parties;
19        (3) state the parties' intention to resolve a
20    collaborative matter through a collaborative law process
21    under this Act;
22        (4) describe the nature and scope of the matter;
23        (5) identify the collaborative lawyer who represents
24    each party in the process; and



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1        (6) contain a statement by each collaborative lawyer
2    confirming the lawyer's representation of a party in the
3    collaborative law process.
4    (b) Parties may agree to include in a collaborative law
5participation agreement additional provisions not inconsistent
6with this Act.
7    Section 5. Beginning and concluding collaborative law
9    (a) A collaborative law process begins when the parties
10sign a collaborative law participation agreement.
11    (b) A tribunal may not order a party to participate in a
12collaborative law process over that party's objection.
13    (c) A collaborative law process is concluded by a:
14        (1) resolution of a collaborative matter as evidenced
15    by a signed record;
16        (2) resolution of a part of the collaborative matter,
17    evidenced by a signed record, in which the parties agree
18    that the remaining parts of the matter will not be resolved
19    in the process; or
20        (3) termination of the process.
21    (d) A collaborative law process terminates:
22        (1) when a party gives notice to other parties in a
23    record that the process is ended;
24        (2) when a party:
25            (A) begins a proceeding related to a collaborative



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1        matter without the agreement of all parties; or
2            (B) in a pending proceeding related to the matter:
3                (i) initiates a pleading, motion, order to
4            show cause, or request for a conference with the
5            tribunal;
6                (ii) requests that the proceeding be put on the
7            tribunal's active calendar; or
8                (iii) takes similar action requiring notice to
9            be sent to the parties; or
10        (3) except as otherwise provided by subsection (g),
11    when a party discharges a collaborative lawyer or a
12    collaborative lawyer withdraws from further representation
13    of a party.
14    (e) A party's collaborative lawyer shall give prompt notice
15to all other parties in a record of a discharge or withdrawal.
16    (f) A party may terminate a collaborative law process with
17or without cause.
18    (g) Notwithstanding the discharge or withdrawal of a
19collaborative lawyer, a collaborative law process continues,
20if not later than 30 days after the date that the notice of the
21discharge or withdrawal of a collaborative lawyer required by
22subsection (e) is sent to the parties:
23        (1) the unrepresented party engages a successor
24    collaborative lawyer; and
25        (2) in a signed record:
26            (A) the parties consent to continue the process by



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1        reaffirming the collaborative law participation
2        agreement;
3            (B) the agreement is amended to identify the
4        successor collaborative lawyer; and
5            (C) the successor collaborative lawyer confirms
6        the lawyer's representation of a party in the
7        collaborative process.
8    (h) A collaborative law process does not conclude if, with
9the consent of the parties, a party requests a tribunal to
10approve a resolution of the collaborative matter or any part
11thereof as evidenced by a signed record.
12    (i) A collaborative law participation agreement may
13provide additional methods of concluding a collaborative law
15    Section 6. Proceedings pending before tribunal; status
17    (a) Persons in a proceeding pending before a tribunal may
18sign a collaborative law participation agreement to seek to
19resolve a collaborative matter related to the proceeding. The
20parties shall file promptly with the tribunal a notice of the
21agreement after it is signed. Subject to subsection (c) and
22Sections 7 and 8, the filing operates as an application for a
23stay of the proceeding.
24    (b) The parties shall file promptly with the tribunal
25notice in a record when a collaborative law process concludes.



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1The stay of the proceeding under subsection (a) is lifted when
2the notice is filed. The notice may not specify any reason for
3termination of the process.
4    (c) A tribunal in which a proceeding is stayed under
5subsection (a) may require the parties and collaborative
6lawyers to provide a status report on the collaborative law
7process and the proceeding. A status report may include only
8information on whether the process is ongoing or concluded. It
9may not include a report, assessment, evaluation,
10recommendation, finding, or other communication regarding a
11collaborative law process or collaborative law matter.
12    (d) A tribunal may not consider a communication made in
13violation of subsection (c).
14    (e) A tribunal shall provide parties notice and an
15opportunity to be heard before dismissing a proceeding in which
16a notice of collaborative process is filed based on delay or
17failure to prosecute.
18    Section 7. Emergency order. During a collaborative law
19process, a tribunal may issue emergency orders to protect the
20health, safety, welfare, or interest of a party or person
21identified as protected in Section 201 of the Illinois Domestic
22Violence Act of 1986.
23    Section 8. Approval of agreement by tribunal. A tribunal
24may approve an agreement resulting from a collaborative law



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2    Section 9. Disqualification of collaborative lawyer and
3lawyers in associated law firm.
4    (a) Except as otherwise provided in subsection (c), a
5collaborative lawyer is disqualified from appearing before a
6tribunal to represent a party in a proceeding related to the
7collaborative matter.
8    (b) Except as otherwise provided in subsection (c) and
9Sections 10 and 11, a lawyer in a law firm with which the
10collaborative lawyer is associated is disqualified from
11appearing before a tribunal to represent a party in a
12proceeding related to the collaborative matter if the
13collaborative lawyer is disqualified from doing so under
14subsection (a).
15    (c) A collaborative lawyer or a lawyer in a law firm with
16which the collaborative lawyer is associated may represent a
18        (1) to ask a tribunal to approve an agreement resulting
19    from the collaborative law process; or
20        (2) to seek or defend an emergency order to protect the
21    health, safety, welfare, or interest of a party or person
22    identified in Section 201 of the Illinois Domestic Violence
23    Act of 1986 if a successor lawyer is not immediately
24    available to represent that person.
25    (d) If subsection (c)(2) applies, a collaborative lawyer,



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1or lawyer in a law firm with which the collaborative lawyer is
2associated, may represent a party or person identified in
3Section 201 of the Illinois Domestic Violence Act of 1986 only
4until the person is represented by a successor lawyer or
5reasonable measures are taken to protect the health, safety,
6welfare, or interest of the person.
7    Section 10. Low income parties.
8    (a) The disqualification of Section 9(a) applies to a
9collaborative lawyer representing a party with or without fee.
10    (b) After a collaborative law process concludes, another
11lawyer in a law firm with which a collaborative lawyer
12disqualified under Section 9(a) is associated may represent a
13party without fee in the collaborative matter or a matter
14related to the collaborative matter if:
15        (1) the party has an annual income that qualifies the
16    party for free legal representation under the criteria
17    established by the law firm for free legal representation;
18        (2) the collaborative law participation agreement so
19    provides; and
20        (3) the collaborative lawyer is isolated from any
21    participation in the collaborative matter or a matter
22    related to the collaborative matter through procedures
23    within the law firm which are reasonably calculated to
24    isolate the collaborative lawyer from such participation.



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1    Section 11. Governmental entity as party.
2    (a) The disqualification of Section 9(a) applies to a
3collaborative lawyer representing a party that is a government
4or governmental subdivision, agency, or instrumentality.
5    (b) After a collaborative law process concludes, another
6lawyer in a law firm with which the collaborative lawyer is
7associated may represent a government or governmental
8subdivision, agency, or instrumentality in the collaborative
9matter or a matter related to the collaborative matter if:
10        (1) the collaborative law participation agreement so
11    provides; and
12        (2) the collaborative lawyer is isolated from any
13    participation in the collaborative matter or a matter
14    related to the collaborative matter through procedures
15    within the law firm which are reasonably calculated to
16    isolate the collaborative lawyer from such participation.
17    Section 12. Disclosure of information. Except as provided
18by law other than this Act, during the collaborative law
19process, on the request of another party, a party shall make
20timely, full, candid, and informal disclosure of information
21related to the collaborative matter without formal discovery. A
22party also shall update promptly previously disclosed
23information that has materially changed. The parties may define
24the scope of disclosure during the collaborative law process.



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1    Section 13. Standards of professional responsibility and
2mandatory reporting not affected. This Act does not affect:
3        (1) the professional responsibility obligations and
4    standards applicable to a lawyer or other licensed
5    professional; or
6        (2) the obligation of a person to report abuse or
7    neglect, abandonment, or exploitation of a child or adult
8    under the law of this State.
9    Section 14. Appropriateness of collaborative law process.
10Before a prospective party signs a collaborative law
11participation agreement, a prospective collaborative lawyer
13        (1) assess with the prospective party factors the
14    lawyer reasonably believes relate to whether a
15    collaborative law process is appropriate for the
16    prospective party's matter;
17        (2) provide the prospective party with information
18    that the lawyer reasonably believes is sufficient for the
19    party to make an informed decision about the material
20    benefits and risks of a collaborative law process as
21    compared to the material benefits and risks of other
22    reasonably available alternatives for resolving the
23    proposed collaborative matter, such as litigation,
24    mediation, arbitration, or expert evaluation; and
25        (3) advise the prospective party that:



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1            (A) after signing an agreement if a party initiates
2        a proceeding or seeks tribunal intervention in a
3        pending proceeding related to the collaborative
4        matter, the collaborative law process terminates;
5            (B) participation in a collaborative law process
6        is voluntary and any party has the right to terminate
7        unilaterally a collaborative law process with or
8        without cause; and
9            (C) the collaborative lawyer and any lawyer in a
10        law firm with which the collaborative lawyer is
11        associated may not appear before a tribunal to
12        represent a party in a proceeding related to the
13        collaborative matter, except as authorized by Section
14        9(c), 10(b), or 11(b).
15    Section 15. Coercive or violent relationship.
16    (a) Before a prospective party signs a collaborative law
17participation agreement, a prospective collaborative lawyer
18shall make reasonable inquiry whether the prospective party has
19a history of a coercive or violent relationship with another
20prospective party.
21    (b) Throughout a collaborative law process, a
22collaborative lawyer reasonably and continuously shall assess
23whether the party the collaborative lawyer represents has a
24history of a coercive or violent relationship with another



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1    (c) If a collaborative lawyer reasonably believes that the
2party the lawyer represents or the prospective party who
3consults the lawyer has a history of a coercive or violent
4relationship with another party or prospective party, the
5lawyer may not begin or continue a collaborative law process
7        (1) the party or the prospective party requests
8    beginning or continuing a process; and
9        (2) the collaborative lawyer reasonably believes that
10    the safety of the party or prospective party can be
11    protected adequately during a process.
12    Section 16. Confidentiality of collaborative law
13communication. A collaborative law communication is
14confidential to the extent agreed by the parties in a signed
15record or as provided by law of this State other than this Act.
16    Section 17. Privilege against disclosure for collaborative
17law communication; admissibility; discovery.
18    (a) Subject to Sections 18 and 19, a collaborative law
19communication is privileged under subsection (b), is not
20subject to discovery, and is not admissible in evidence.
21    (b) In a proceeding, the following privileges apply:
22        (1) A party may refuse to disclose, and may prevent any
23    other person from disclosing, a collaborative law
24    communication.



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1        (2) A nonparty participant may refuse to disclose, and
2    may prevent any other person from disclosing, a
3    collaborative law communication of the nonparty
4    participant.
5    (c) Evidence or information that is otherwise admissible or
6subject to discovery does not become inadmissible or protected
7from discovery solely because of its disclosure or use in a
8collaborative law process.
9    Section 18. Waiver and preclusion of privilege.
10    (a) A privilege under Section 17 may be waived in a record
11or orally during a proceeding if it is expressly waived by all
12parties and, in the case of the privilege of a nonparty
13participant, it is also expressly waived by the nonparty
15    (b) A person that makes a disclosure or representation
16about a collaborative law communication which prejudices
17another person in a proceeding may not assert a privilege under
18Section 17, but this preclusion applies only to the extent
19necessary for the person prejudiced to respond to the
20disclosure or representation.
21    Section 19. Limits of privilege.
22    (a) There is no privilege under Section 17 for a
23collaborative law communication that is:
24        (1) available to the public under the Freedom of



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1    Information Act or made during a session of a collaborative
2    law process that is open, or is required by law to be open,
3    to the public;
4        (2) a threat or statement of a plan to inflict bodily
5    injury or commit a crime of violence;
6        (3) intentionally used to plan a crime, commit or
7    attempt to commit a crime, or conceal an ongoing crime or
8    ongoing criminal activity; or
9        (4) in an agreement resulting from the collaborative
10    law process, evidenced by a record signed by all parties to
11    the agreement.
12    (b) The privileges under Section 17 for a collaborative law
13communication do not apply to the extent that a communication
15        (1) sought or offered to prove or disprove a claim or
16    complaint of professional misconduct or malpractice
17    arising from or related to a collaborative law process; or
18        (2) sought or offered to prove or disprove abuse,
19    neglect, abandonment, or exploitation of a child or adult,
20    unless a child protective services agency or adult
21    protective services agency is a party to or otherwise
22    participates in the process.
23    (c) There is no privilege under Section 17 if a tribunal
24finds, after a hearing in camera, that the party seeking
25discovery or the proponent of the evidence has shown the
26evidence is not otherwise available, the need for the evidence



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1substantially outweighs the interest in protecting
2confidentiality, and the collaborative law communication is
3sought or offered in:
4        (1) a court proceeding involving a felony or
5    misdemeanor; or
6        (2) a proceeding seeking rescission or reformation of a
7    contract arising out of the collaborative law process or in
8    which a defense to avoid liability on the contract is
9    asserted.
10    (d) If a collaborative law communication is subject to an
11exception under subsection (b) or (c), only the part of the
12communication necessary for the application of the exception
13may be disclosed or admitted.
14    (e) Disclosure or admission of evidence excepted from the
15privilege under subsection (b) or (c) does not make the
16evidence or any other collaborative law communication
17discoverable or admissible for any other purpose.
18    (f) The privileges under Section 17 do not apply if the
19parties agree in advance in a signed record, or if a record of
20a proceeding reflects agreement by the parties, that all or
21part of a collaborative law process is not privileged. This
22subsection does not apply to a collaborative law communication
23made by a person that did not receive actual notice of the
24agreement before the communication was made.
25    Section 20. Authority of tribunal in case of noncompliance.



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1    (a) If an agreement fails to meet the requirements of
2Section 4, or a lawyer fails to comply with Section 14 or 15, a
3tribunal may nonetheless find that the parties intended to
4enter into a collaborative law participation agreement if they:
5        (1) signed a record indicating an intention to enter
6    into a collaborative law participation agreement; and
7        (2) reasonably believed they were participating in a
8    collaborative law process.
9    (b) If a tribunal makes the findings specified in
10subsection (a), and the interests of justice require, the
11tribunal may:
12        (1) enforce an agreement evidenced by a record
13    resulting from the process in which the parties
14    participated;
15        (2) apply the disqualification provisions of Sections
16    5, 6, 9, 10, and 11; and
17        (3) apply a privilege under Section 17.
18    Section 21. Uniformity of application and construction. In
19applying and construing this uniform Act, consideration must be
20given to the need to promote uniformity of the law with respect
21to its subject matter among states that enact it.
22    Section 22. Relation to electronic signatures in global and
23national commerce act. This Act modifies, limits, and
24supersedes the federal Electronic Signatures in Global and



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1National Commerce Act, 15 U.S.C. Section 7001, et seq., but
2does not modify, limit, or supersede Section 101(c) of that
3Act, 15 U.S.C Section 7001(c), or authorize electronic delivery
4of any of the notices described in Section 103(b) of that Act,
515 U.S.C. Section 7003(b).
6    Section 23. (Blank).
7    Section 24. (Blank).