After the Drafting:  The Fate of the Uniform Collaborative Law Act.

By Christopher M. Fairman*

In July 2009, the Drafting Committee presented its final version of the Uniform Collaborative Law Act (UCLA) to the Uniform Law Commission[1] for approval.  It passed.  After three years of work, the drafters thought their task was done.  As the Reporter wrote to the Drafting Committee: “We are, I think, near the end of a long road that we travelled [sic] together.”[2] The Uniform Law Commission even moved the UCLA to the “Recently Completed Drafting Projects” section of its website.[3] A few nits to clean up, a final review from the Style Committee[4], and off to the states for consideration.

To pave the way for state enactment, the Uniform Law Commission wanted the endorsement of the American Bar Association (ABA).  This follows the successful path of the Uniform Mediation Act which was approved by both the Uniform Law Commission and the ABA and ultimately adopted in eleven jurisdictions.[5]  This task seemed doable.  Both the ABA’s Section of Family Law Section and Section of Dispute Resolution not only endorsed, but co-sponsored the UCLA.  Consequently, the Uniform Law Commission planned to present the UCLA before the ABA House of Delegates for a vote as soon as possible at the ABA’s February 2010 Mid-Year Meeting.

Proponents of the UCLA, however, underestimated the challenge. The Section of Litigation, the ABA’s largest, went on record as opposing the UCLA.  Faced with growing concerns being raised by the House of Delegates, the Uniform Law Commission abruptly withdrew the UCLA from consideration rather than risk the potential for a negative vote.  To respond to the unexpected criticism of the UCLA, the Uniform Law Commission has now reconvened the drafters as a Standby Committee with the intent of revising the UCLA to respond to the mounting criticism.  While the Standby Committee tries to revise the UCLA to make it palatable to the ABA, the UCLA has already been introduced in its original form before several state legislatures.  So what is the future of the UCLA after the drafting? The answer depends largely upon just how much the Standby Committee is willing to sacrifice of its original vision.

Birth of the UCLA

Collaborative law is an alternative dispute resolution process where parties represented by counsel try to resolve their dispute themselves rather than having a ruling imposed upon them by a court or arbitrator.[6]  While lawyers represent the parties during the collaborative law process, their role is not the traditional adversarial role.  Instead collaborative lawyers encourage the parties to engage in joint problem solving.  The distinctive characteristic of collaborative law is a written participation agreement where the parties agree not to go to court for resolution of the dispute during the collaborative process.[7]   If either party seeks judicial intervention, the agreement requires that lawyers for all parties must withdraw from further representation.[8]   Liberated from the litigation option, the parties and their lawyers are free to focus all their energies on resolution.

In the 20 years since its inception, collaborative lawyering has certainly caught on.  Some 22,000 lawyers worldwide have been trained in collaborative law.[9] Collaborative law has been used to resolve thousands of cases in the United States, Canada, and elsewhere.[10]   There are collaborative law practice groups in virtually every state in the nation and in several foreign jurisdictions.[11]

The rapid growth in collaborative lawyering has led several states to institutionalize the process.  State legislatures in California, North Carolina, and Texas now have statutes recognizing collaborative law.[12]   In other states, court rules have authorized collaborative law.[13]   Notwithstanding these attempts, collaborative law has largely been practiced under the auspices of private collaborative law participation agreements developed by private practice groups.

In July 2006 following a report by the Study Committee on Collaborative Law,[14] the Uniform Law Commission’s Committee on Scope and Program unanimously recommended that a drafting committee be formed.[15]   With the appointment of the Drafting Committee completed in early 2007, drafting sessions occurred throughout 2007 and 2008.[16]   The drafting process produced seven drafts prior to the 2008 Annual Meeting Draft where the UCLA was first read to the Commissioners at their annual meeting.  Four additional drafts were considered the following year in response to issues raised at annual meeting culminating in the 2009 Annual Meeting Draft where the text was approved.  A couple of drafts to respond to concerns raised at the 2009 meeting and Style Committee comments and a Final Act was produced November, 17, 2009.

Architecture of the UCLA

The scope of the UCLA differs from currently existing state statutes that are limited to family law disputes.  A chief goal of the Drafting Committee was to expand the reach of collaborative law beyond the family law enclave where it has found success.[17]   To that end, the UCLA is transsubstantive and does not limit collaborative law to any specific type of dispute.[18]

To facilitate collaborative law’s development, the UCLA is a combination of procedural provisions to codify baseline components of collaborative practice (drawn chiefly from state statutes) and a Uniform Mediation Act-style privilege. Following the Act’s title, terminology, and scope[19] are the basic provisions of what must be part of a collaborative law agreement,[20] how the process starts and stops,[21] and how it interacts with the courts.[22]   The following three sections implement the disqualification provision with exceptions for low income and governmental parties.[23] An additional key feature of collaborative law, voluntary disclosure of information, is included.[24]

The Drafting Committee understood that ethical issues might be raised to derail the UCLA.  Despite inoculation by the ABA Formal Opinion 07-447[25] , several provisions attempt to head off ethical challenges. First, the UCLA states that it does not affect the professional responsibility obligations and standards applicable to a lawyer or other licensed professional.[26] Second, to guarantee the informed consent necessary to square collaborative law with ethical obligations, screening requirements are mandated, including specific screening for coercive or violent relationships.[27]   Additional ethical concerns relate to confidentiality and privilege.  The Act provides confidentiality for collaborative law communications and a privilege against disclosures.[28] Additional provisions allow for waiver and exceptions to the privilege.[29]

The remainder of the UCLA handles administrative issues.  There is a salvage provision in the event the parties intended to enter a collaborative agreement but fall short.[30] There are also provisions for uniformity, electronic signatures, severability, and an effective date.[31]

A House (of Delegates) Divided

At the start of 2010, with the UCLA approved by the Uniform Law Commission, the only hurdle left to clear was ABA approval.  While the ABA’s support is not essential to the approval process of a uniform law, UCLA supporters understood that “the ABA’s vote will significantly impact how the UCLA is received when presented to state legislators for possible adoption.”[32]   An affirmative ABA vote “would provide very significant momentum towards the adoption of the UCLA at the state level and for the growth and development of collaborative law.”[33]

The Uniform Law Commission clearly understood the importance of ABA support.  Representatives of the ABA played a part in the drafting of the UCLA from the very start.  Four ABA-appointed advisors participated in the UCLA drafting process, one overall advisor and one from each of the Family Law, Dispute Resolution, and Litigation Sections.[34] All ABA Sections were invited to Comment on drafts of the UCLA.  The Drafting Committee also asked the ABA Standing Committee on Ethics and Professional Responsibility to comment on the Act.[35] In the end, three ABA Sections support the UCLA: the ABA Section of Dispute Resolution,[36] the ABA Section of Family Law,[37] and the ABA Section of Individual Rights and Responsibilities.[38] The Family Law and Dispute Resolution Sections are co-sponsors.[39]

However, ABA section support is not universal.  The governing Council for the largest ABA section, the Litigation Section, voted unanimously to oppose the UCLA.[40]   The Litigation Section has both conceptual problems with the UCLA and a laundry list of technical problems with the specific provisions. Their most fundamental concern is that the UCLA invites legislative action in the domain of legal ethics thereby undermining judicial regulation of the profession.[41]   They also object to the disqualification agreement on numerous grounds: as a violation of the Model Rule 1.2, due the impossibility of informed consent, because of inadequate handling of power imbalances, as unduly burdensome on lawyers, and as undermining the voluntariness of settlement.[42]   The Section also claims the discovery provisions are flawed, the waiver of privilege is almost impossible to understand, and the term “substantially related” is misused.[43] They do not understand why some provisions like screening for domestic violence are included, and others like a fraud exception to the privilege are not.[44]   On top of all that, the “order of the sections is not logical.”[45]

The Uniform Law Commission has responded point by point.[46] So has the Section on Dispute Resolution.[47] Other supporters rallied law professors to endorse the UCLA.[48]   One proponent even took to Utube to win support.[49]   These efforts, however, could not stem the nay-sayers. Rather than risk a negative vote, the Uniform Law Commission withdrew it from consideration.

The ULC Strikes Back

In another surprise move, the Uniform Law Commission has conscripted the Drafting Committee as a Standby Committee on the UCLA and tasked them to revise the UCLA to respond to the Litigation Section’s concerns.  In anticipation of revising the act, the Reporter has circulated both a memo of proposed options[50] and a newly-revised working draft—Uniform Collaborative Law Act and Uniform Collaborative Law Rules (March 2010 UCLA).[51]   It is striking in the concessions being contemplated.[52] While the final product of this renewed drafting effort remains to be seen, it is still possible to make some predictions about the likelihood of success.

Legislative Encroachment — The Litigation Section’s first and fundamental objection to the ULCA is fear of legislative encroachment into the judiciary’s regulation of the practice of law. To respond to this concern, the March 2010 UCLA adds a new section authorizing judicial rulemaking over the collaborative law process.[53] The new section authorizes both internal case management and regulatory judicial rulemaking over collaborative law.  The March 2010 UCLA is also reorganized to allow for most of its provisions to be enacted by either state legislatures or by judicial rulemaking.[54]   This will allow jurisdictions that want collaborative law, but not the legislative intrusion a way to implement it.  However, even with the judicial rulemaking option the collaborative law privilege would have to be enacted legislatively. Surely the Litigation Section cannot grouse about that.  Most jurisdictions require legislative action to create privileges.  Moreover, a uniform approach to the development of the privilege is surely superior to a piecemeal approach.[55]

Could this revision be the spoonful of sugar necessary for the Litigation Section to swallow its opposition?  I doubt it.  The Litigation Section cannot really do an about-face on this issue even if the March 2010 UCLA change is adopted.  Assuming the Litigation Section genuinely is concerned over the potential for legislative meddling with the practice of law, the problem remains. The revisions permit judicial rulemaking and even give a judicial roadmap for adoption, but March 2010 UCLA still allows legislatures the same option.  The welcome mat out is still in front of the regulation of the practice of law if a state wants to take that route.

Disqualification Provision — After legislative encroachment, the Section of Litigation finds the disqualification provision polarizing. Collaborative law works because of the requirement of a disqualification agreement that the lawyers from each side will not represent the parties in litigation over the dispute.  This creates the crucible that allows party autonomy, interest based-bargaining, and creative problem solving to flourish.  With the option to litigate effectively removed, parties settle.

The tension is that the opposing party now controls what happens to you and your lawyer. As the Litigation Section notes, if you have a situation with power imbalance, such as an abusive spouse in a divorce, the bad actor could drag out the process, gain information from mandatory disclosures, manipulate others and then terminate the whole thing—leaving the disadvantaged party worn-out, poorer, and now unrepresented.[56]

The Litigation Section objects to the disqualification on several grounds including incompatibility with Model Rule 1.2.  However, Model Rule 1.2 permits lawyers and clients to limit the scope of a representation so long as the limitation is reasonable under the circumstances and the client gives informed consent.[57] Since ABA Formal Opinion 07-447 finding collaborative law being consistent with the scope limitations under Rule 1.2, this argument is less compelling.[58]   Collaborative law is clearly permissible under the Model Rules and scope limitations.  Permissible, however, is not necessarily desirable.  The Litigation Section voices the harder question: should we encourage the expansion of this practice if it involves too great a risk of over-reaching or damage to the lawyer-client relationship?

As the Litigation Section notes, the UCLA handles this tension by requiring a heightened informed consent from parties prior to using collaborative law. The lawyer must assess the appropriateness of collaborative law to the matter and provide the client with the risks and benefits of collaborative law compared to litigation, mediation, arbitration and expert evaluation, specifically including the termination issue. [59]   The UCLA further mandates the lawyer to prescreen clients for appropriateness for collaborative by inquiring into a history of domestic violence.[60] This provision is a great example of where the tension between a transsubstantive statute or a specific family law one manifests. But even setting aside the domestic violence issue, the Litigation Section voices the concern that obtaining informed consent, if possible, is unduly burdensome on the lawyers involved.

Disqualification spawns another problem area of the UCLA with its imputation provision.  The UCLA imputes a collaborative lawyer’s disqualification to the other lawyers in the firm.[61]   It creates exceptions, however, for low income parties.[62] No jurisdiction currently recognizes such an exception for collaborative law. Despite the good intentions of the provision, the Litigation Section questions why it was included.  The provision does seem problematic.  It squarely raises the fundamental question about legislating in what is clearly within the realm of professional ethics—determining the boundaries of conflicts of interest and imputation.  The UCLA leaves unanswered how this statutory imputation provision will interact with varying state imputation and conflict rules—a problem magnified by the ABA’s own relaxation of imputation in Rule 1.10 last year.[63]   It also begs the question of the real value of the disqualification provision in the first place.  If it can be worked around with screens for the poor, why not allow screens for the paying client?

It seems that the only way to address all of the problems spawned by the disqualification agreement identified by the Litigation Section is to eliminate it.  Would the Standby Committee realistically consider eviscerating the UCLA altogether and abandon the disqualification agreement?  While there are undoubtedly advisors to the Standby Committee that would support a move a make the disqualification optional and convert the UCLA into a vehicle to promote cooperative law[64] , the Reporter lamented:

Finally, the suggestion has been raised that the ABA would be more receptive to the UCLA if the disqualification requirement were made optional. In effect, the amended statute would give parties the option of contracting for cooperative law or collaborative law. This suggestion was offered as an alternative to limiting the scope of a “matter” to collaborative law as discussed above. It is important to note that the Committee previously discussed this idea and rejected it as inconsistent with core nature of collaborative law.[65]

The Reporter was nonetheless willing to redraft the act if the Standby Committee deems it necessary.

The Standby Committee may have elimination of the disqualification agreement on its table, but I see no realistic possibility that the drafters would remove the key defining feature of the dispute resolution process they champion. Can the UCLA make it through with a disqualification provision? Maybe—if no one is looking.

Bait and Switch — Is the concern about the propriety of the UCLA really about who regulates the practice of law or how the disqualification provision works or is there another explanation for the resistance? Collaborative law works wonders given the right lawyers, clients, and problems.  That niche seems to be family law.  The proponents of collaborative law want the UCLA to support its growth into other sectors, yet be responsive to specific concerns of family law practitioners.  This seems only natural given that the only real experience with the process is in the family law context and those practitioners form a logical base of support for collaborative law.  This led to the inclusion of provisions such as the duty to screen for domestic violence that appears routine to family law practitioners, but bizarre to litigators generally. This, in turn, has generated a turf war between collaborative law proponents looking to expand their reach and litigators who fear the challenge.  The Standby Committee sees this.

In what may be the toughest pill to swallow, the Standby Committee is revisiting the scope of collaborative law altogether.  Rather than be transsubstantive, the March 2010 UCLA provides three new options: (A) a list of subjects that constitute “family and divorce law”,  (B) disputes involving parties “with continuing familial, personal, or business relationships which will extend beyond the term of the dispute, claim, or issue at issue”; or (C) matters covered by a state’s family law code.[66]   The Standby Committee could choose one of the options, a combination, or keep all three and punt this to the states to choose its own scope.

Limiting the UCLA to family law makes sense. If the UCLA originally had maintained a more limited scope, the Litigation Section would not have entrenched itself against a Family Law Act. If the Standby Committee now limits the scope of collaborative law to one of the family law variations suggested, the Litigation Section might well withdraw its opposition. Even without a formal withdrawal, such a limitation would certainly diffuse the tension between the ABA sections and allow the agenda to shift to fine-tuning the UCLA provisions.[67]

The Uniform Law Commission by creating a Standby Committee is serious about gaining ABA support for the UCLA.  Whether the Standby Committee makes sweeping changes like those described above or opts for a more modest response, two things are certain.   Any ABA action is delayed until August at the earliest when the body convenes it annual meeting in San Francisco.  And while the ABA debate continues, state legislatures are not waiting.

A Not So Uniform Act?

Regardless of the ABA bickering, the real battleground for the UCLA will always be the state legislatures where it is introduced.  There are already five states poised to take action.  The UCLA has been introduced in four states: Minnesota, Oklahoma, Tennessee, and Utah.[68]   Of course, the version of the UCLA under consideration is the final version approved by the Uniform Law Commission.  If the Standby Committee makes significant changes it is possible—indeed quite likely—that multiple versions of the so-called “Uniform” statute are possible.  In Oklahoma and Tennessee only preliminary activity has taken place. Utah and Minnesota, on the other hand, present a richer story.

Both the House and Senate of the Utah Legislature have already passed the Utah Uniform Collaborative Law Act and it awaits the Governor’s signature. The Utah bill used the Final Draft of the UCLA as a framework, yet differs from the UCLA in several significant ways.  It omits the disqualification agreement altogether, including the exceptions for low income parties and government entities as parties.[69]   While it retains a confidentiality provision,[70] it omits the privilege against disclosure of collaborative law communications and its waiver and limits.[71] The Utah UCLA does include the screening provisions for appropriateness, including for coercive and violent relationships.[72] It also retains a transsubstantive scope.[73] If the Utah governor signs the Utah UCLA, it will ironically provide for cooperative law, not collaborative law, due to the absence of a disqualification provision.

The Utah Legislature’s quick action on the UCLA is matched by Minnesota’s, but in a different direction.  The Minnesota Supreme Court already exercises a case management function over collaborative law cases.[74]   That looks like all Minnesota will get. The Minnesota Supreme Court soundly rejects the notion that the courts by court rule or the legislature by statute could regulate the practice, growth and development of collaborative law.  In March 2007, a proposed court rule containing much of what is in the UCLA was rejected by the Rules Advisory Committee and the Minnesota Supreme Court because of the belief that collaborative law is not a court-annexed ADR process.[75]  

When the UCLA was introduced into the Minnesota Legislature, the House Chair of the Civil Justice Committee asked the Chief Justice for comments.  The Court responded that collaborative law is about lawyering and that regulating the professional conduct of attorneys was an area constitutionally reserved to the courts. [76]  If proponents of collaborative law desire changes to the professional responsibilities or specialty certifications of lawyers to improve and address collaborative law, the Supreme Court suggested those concerns should be addressed directly to the Office of the Lawyers Professional Responsibility and/or Legal Certification Board or to the Supreme Court.[77]   Accordingly, the Chair of the Civil Justice Committee will not schedule a hearing on the UCLA without the support of the courts.[78]   As a result, the UCLA is dead in Minnesota.  The Minnesota Supreme Court is oblivious to the Catch-22 it creates.  The court will not promulgate a rule to govern collaborative law because it is not court-annexed and the court will not allow the legislature to act because regulation of law belongs with them.

Ohio is the fifth state to take action on collaborative law so far this year—but not the UCLA.  Ohio legislators, perhaps sensing the difficulty in creating a transsubstantive collaborative law act, have just introduced the Ohio Collaborative Family Law Act.[79] The Ohio bill defines "Collaborative matter" as a “dispute, transaction, claim, problem, or issue for resolution that arises under Title XXXI of the Revised Code and is described in a collaborative family law participation agreement.”[80]    In an act of potential foreshadowing, the Uniform Law Commission’s website identifies this new Ohio bill in the “Bill Tracking” section for Collaborative Law Act.[81]  The Standby Committee should heed this message: a family law collaborative law act is doable.

Collaborative law has been on the fast track since its introduction two decades ago.  For a generation of lawyers practicing family law or alternative dispute resolution, collaborative law may seem commonplace.  As the ice cold reception by the ABA’s Litigation Section illustrates, the allure of this new ADR process may not be universal.  There is certainly room for proponents of collaborative law to continue their educational efforts and the ABA House of Delegates is big and important classroom.  The Uniform Law Commission wisely recognizes this fact with the creation of the Standby Committee.  The months ahead will determine if the Uniform Law Commission and the ABA, who have cooperated so successfully in the past, can do so again on behalf of collaborative law.

* Professor of Law, The Ohio State University Moritz College of Law.

[1] The ULC is also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL).

[2] Letter from Andrew Schepard, Reporter, to Drafting Committee for the Uniform Collaborative Law Act  (Sept. 30, 2009), available at http://www.law.upenn.edu/bll/archives/ulc/ucla/2009sept30_memo.pdf

[3] NCCUSL, http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=0&tabid=59 (last visited Mar. 26, 2010) (listing the UCLA under “Recently Completed Drafting Projects”).

[4] The Style Committee is a Standing Committee of NCCUSL that “revises as to phraseology and style, but without altering meaning or context, all acts submitted to it by drafting committees, and all acts finally approved by the Conference.” Standing and Governance, NCCUSL, http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=2&tabid=62 (last visited Mar. 26, 2010).

[5] The UMA is pending in three additional jurisdictions: Hawaii, Massachusetts, an New York.  See Legislative Fact Sheet, Uniform Mediation Act, http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-uma2001.asp (last visited Mar. 26, 2010).

[6] See National Conference of Commissioners on Uniform State Laws, Uniform Collaborative Law Act prefatory note (Final Draft Nov. 17, 2009) [hereafter Final Draft UCLA]. For more description on collaborative law see Christopher M. Fairman, Collaborative Law and Legal Ethics: Growing Pains for an ADR Movement, 6 Mayhew-Hite Rep. on Disp. Resol. and the Cts. (2007-8).

[7] See Chip Stewart, Colorado Ethics Opinion Says Collaborative Law Violates Rules of Professional Conduct, 13 No. 3 Disp. Resol. Mag. 29 (Spring 2007) (describing collaborative law).

[8] Pauline H. Tesler, Collaborative Family Law, 4 Pepp. Disp. Resol. L.J. 317, 319-20 (2004).

[9] Final Draft UCLA prefatory note.

[10] Christopher M. Fairman, Growing Pains: Changes in Collaborative Law and the Challenge of Legal Ethics, 30 Campbell L. Rev. 237, 239 (2008)

[11] Final Draft UCLA prefatory note.

[12] See, e.g., Cal. Fam. Code § 2013 (2007); N.C. Gen. Stat. §§ 50-70 to -79 (2006); Tex. Fam. Code §§ 6.603, 153.0072 (2006). For a detailed discussion on the California Collaborative Law Act see Andrew Schouten, Breaking Up Is No Longer Hard To Do: The Collaborative Family Law Act, 38 McGeorge L. Rev. 125 (2007). Utah recently established a mandatory divorce orientation course for all parties with minor children who file a petition for temporary separation or divorce.  The course must include options available for proceeding with a divorce, including collaborative law.  See Utah Code Ann. § 30-3-11.4 (effective April 30, 2007).

[13] See, e.g., Contra Costa, Ca., Local Ct. Rule 12.5 (2007); L.A., Cal., Local Ct. Rule, ch. 14, R. 14.26 (2007); S.F., Cal., Unif. Local Rules of Ct. R. 11.17 (2006); Sonoma County, Cal., Local Ct. Rule 9.25 (2006); East Baton Rouge, La., Unif. Rules for La. Dist. Cts. tit. IV, § 3 (2005); Utah Code of Jud. Admin. ch. 4, art. 5, R. 40510 (2006).

[14] Prior to the appointment of the Drafting Committee, the NCCUSL had appointed a Study Committee on Collaborative Law. Commissioner Harry L. Tindall was the Chair of the Study Committee on Collaborative Law. National Conference of Commissioners on Uniform State Laws, Meeting Minutes of the Committee on Scope and Program, at 3 (July 8–9, 2006), http://www.nccusl.org/Update/Minutes/scope070806mn.pdf.

[15] Id.

[16] Drafting sessions occurred in April 2007 in Salt Lake City, Utah, in October 2007 in Boise, Idaho, and in January 2008 in Chicago, Illinois.

[17] The Uniform Collaborative Law Act—An Overview, Final Draft UCLA prefatory note (“The overall goal of the Uniform Collaborative Law Act is to encourage the continued development and growth of collaborative law as a voluntary dispute resolution option.”).

[18] Final Draft UCLA § 2(5) (“‘Collaborative matter’ means a dispute, transaction, claim, problem, or issue for resolution described in a collaborative law participation agreement. The term includes a dispute, claim, or issue in a proceeding.”).

[19] Id. §§ 1-3.

[20] Id. § 4.

[21] Id. § 5.

[22] Id. §§ 6-8.

[23] Id. §§ 9-11.

[24] Id. § 12.

[25] See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 07-447 (2007); Fairman, supra note 10, at 263-67 (discussing the opinion).

[26] Final Draft UCLA § 13.

[27]   Id. §§ 14-15.

[28] Id. §§ 16-17.

[29] Id. §§ 18-19.

[30] Id. § 20.

[31] Id. §§ 21-24.

[32] Letter from Robert Mnookin, John Lande, Jim Alfini, Linda Elrod, Nancy Ver Steegh to Professor Colleagues  (Jan. 4, 2009) (Re: The ABA House of Delegates Vote on the Uniform Collaborative Law Act).

[33] Id.

[34] The ABA Advisor for the Uniform Collaborative Law Act was Carlton Stansbury of the Family Law Section.  Lawrence Maxwell, Jr. was the Alternative Dispute Resolution Section Advisor.  Charla Bizios Stevens was the Litigation Section Advisor.  Gretchen Walther was the Family Law Section Advisor. Uniform Law Commission, Report on the Uniform Collaborative Law Act to the ABA House of Delegates (Feb. 2010), at 12, http://www.abanow.org/wordpress/wp-content/themes/ABANow/wp-content/uploads/resolution-pdfs/MY2010/111C.pdf

[35] Language in the UCLA was changed following their comments to be more compliant with the ABA Ethics Opinion and mandates essential elements of disclosure and discussion between prospective parties in order to guarantee that all parties enter into the collaborative agreement with informed consent. Uniform Law Commission, Report on the Uniform Collaborative Law Act to the ABA House of Delegates (Feb. 2010), at 12, http://www.abanow.org/wordpress/wp-content/themes/ABANow/wp-content/uploads/resolution-pdfs/MY2010/111C.pdf

[36] ABA Section of Dispute Resolution: Collaborative Law Committee, http://www.abanet.org/dch/committee.cfm?com=DR035000 (last visited Mar. 26, 2010).

[37] The Section of Family Law Council also voted to support the Uniform Collaborative Law Act (UCLA) proposed by the Uniform Law Commission (ULC). However, since a number of other ABA sections and divisions opposed the UCLA in its current form, the Uniform Law Commission chose to withdraw the act and will attempt to revise and resubmit it to the ABA House next year.  ABA Section of Family Law, ENewsletter (Feb. 2010), http://www.abanet.org/family/newsletters/2010/february.html

[38] Uniform Law Commission, Report on the Uniform Collaborative Law Act to the ABA House of Delegates (Feb. 2010), at 13, http://www.abanow.org/wordpress/wp-content/themes/ABANow/wp-content/uploads/resolution-pdfs/MY2010/111C.pdf

[39] ABA Section of Family Law, ENewsletter (Oct. 2009), http://www.abanet.org/family/newsletters/2009/october.html (“Our Council Meeting included a lively discussion on the proposed Uniform Collaborative Law Act. I am so proud of our Council Members for their active participation and discussions. After this issue was thoroughly debated, our Council voted to co-sponsor this Act.”); Letter from Homer La Rue, Chair, ABA Section of Dispute Resolution to ABA Sections, Divisions and Members of the ABA House of Delegates (Sept. 27, 2009), available at http://meetings.abanet.org/webupload/commupload/DR035000/sitesofinterest_files/DRSectionMemoreUCLAtoSectionsandDe_.pdf

[40] Letter of Robert Rothman, Chair, ABA Section of Litigation, to Peter K. Munson, Chair, Drafting Committee on Uniform Collaborative Law Act (Apr. 15, 2009), at 1, available at http://meetings.abanet.org/webupload/commupload/DR035000/sitesofinterest_files/DRSectionMemoreUCLAtoSectionsandDe_.pdf.

[41] Id.

[42] Id. at 1-3.

[43] Id. at 3-4.

[44] Id. at 3.

[45] Id. at 4.

[46] Letter from Peter K. Munson, Chairman, Drafting Committee on the Uniform Collaborative Law Act, to Robert Rothman, Chairman, ABA Section on Litigation (June 10, 2009), available at http://meetings.abanet.org/webupload/commupload/DR035000/sitesofinterest_files/DRSectionMemoreUCLAtoSectionsandDe_.pdf

[47] Letter from Homer La Rue, Chair, ABA Section of Dispute Resolution, to ABA Sections, Divisions and Members of the ABA House of Delegates (Sept. 27, 2009), available at http://meetings.abanet.org/webupload/commupload/DR035000/sitesofinterest_files/DRSectionMemoreUCLAtoSectionsandDe_.pdf

[48] Letter from Robert Mnookin, John Lande, Jim Alfini, Linda Elrod, and Nancy Ver Steegh to Professor Colleagues  (Jan. 4, 2009).

[49] Uniform Collaborative Law Act—Why the ABA House of Delegates Should Approve It (Oct. 2, 2009), http://www.youtube.com/watch?v=-8wt5F3fzOQ

[50] Letter from Andrew Schepard to Standby Committee on the Uniform Collaborative Law Act (Mar. 10, 2010), available at http://www.law.upenn.edu/bll/archives/ulc/ucla/2010mar10_memo.pdf

[51] National Conference of Commissioners on Uniform State Laws, Uniform Collaborative Law Act and Uniform Collaborative Law Rules (Draft Mar. 5, 2010) [hereafter March 2010 UCLA], 2009http://www.law.upenn.edu/bll/archives/ulc/ucla/2010mar_draft.htm

[52] See Agenda for Meeting of Friday, March 26th and Saturday, March 27th, 2010, Drafting Committee for the Uniform Collaborative Law Act, available at http://www.law.upenn.edu/bll/archives/ulc/ucla/2010mar_agenda.pdf

[53] March 2010 UCLA § 3 (Judicial Rule Making).

[54] See Letter from Andrew Schepard to Standby Committee on the Uniform Collaborative Law Act (Mar. 10, 2010), at 2, available at http://www.law.upenn.edu/bll/archives/ulc/ucla/2010mar10_memo.pdf

[55] While I’m sympathetic to the Litigation Section’s lament that the UCLA privilege is “almost impossible to understand,” the reality is that the task of drafting privileges and exceptions is a complicated task. And as with mediation, if we need a privilege to protect confidentiality in collaborative law, it is best done through a uniform statute than piecemeal.

[56] See Letter of Robert Rothman, Chair, ABA Section of Litigation, to Peter K. Munson, Chair, Drafting Committee on Uniform Collaborative Law Act (Apr. 15, 2009), at 1-2, available at http://meetings.abanet.org/webupload/commupload/DR035000/sitesofinterest_files/DRSectionMemoreUCLAtoSectionsandDe_.pdf.

[57] See Model Rules of Prof’l Conduct R. 1.2 cmt. [6] (“A limited representation may be appropriate because the client has limited objectives for the representation.  In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives.”).

[58] See supra note 25, and accompanying text.

[59] March 2010 UCLA § 12(2)-(3).

[60] Id. § 13.

[61] Id. § 9.

[62] Id. § 10.

[63] See generally Erik Wittman, Current Development, A Discussion of Nonconsensual Screens as the ABA Votes to Amend Model Rule 1.10, 22 Geo. J. L. Ethics 1211 (2009) (discussing new ABA Rule 1.10).

[64] Cooperative law is essentially collaborative law without the disqualification agreement. See Fairman supra note 10, at 248-49.

[65] Letter from Andrew Schepard to Standby Committee on the Uniform Collaborative Law Act (Mar. 10, 2010), at 15, available at http://www.law.upenn.edu/bll/archives/ulc/ucla/2010mar10_memo.pdf

[66] March 2010 UCLA § 2(5)(A)-(B).

[67] For example, the Standby Committee can revisit the inclusion of a fraud exception to the privilege.  The March 2010 UCLA does not include one, but it would be easy to insert.  The Drafting Committee originally rejected creating a fraud exception for fear that it would create too big a loophole in the evidentiary privilege granted to collaborative law and that one is not contained in the Uniform Mediation Act on which the evidentiary privilege sections of the UCLA are modeled. See Letter from Andrew Schepard to Standby Committee on the Uniform Collaborative Law Act (Mar. 10, 2010), at 15, available at http://www.law.upenn.edu/bll/archives/ulc/ucla/2010mar10_memo.pdf

[68] H.B. 3102, 52nd Leg., 2d Reg. Sess. (Okla. 2010) (filed Jan. 15, 2010); S.F. 2492, 86th Leg. Sess., 2d Reg. Sess. (Minn. 2010) (introduced Feb. 9, 2010); S.B. 3531, 160th Gen. Assem., 2d Reg. Sess. (Tenn. 2010) (filed Jan. 28, 2010); H.B. 284, 59th Leg., Gen. Sess. (Utah 2010) (filed Feb. 2, 2010).

[69] Compare H.B. 284, 59th Leg., Gen. Sess. (Utah 2010) (enrolled copy) with Final Draft UCLA §§ 9-11.

[70] See H.B. 284, 59th Leg., Gen. Sess. § 13 (Utah 2010).

[71] Compare H.B. 284, 59th Leg., Gen. Sess. (Utah 2010) (enrolled copy) with Final Draft UCLA §§ 17-19.

[72] See H.B. 284, 59th Leg., Gen. Sess. §§ 11-12 (Utah 2010).

[73] See id. § 2.

[74] See Promulgation of Amendments to the Minnesota General Rules of Practice for the District Courts, In re: Supreme Court Advisory Committee on General Rules of Practice, CX-89-1863 (Minn. Sept. 26, 2007). New Rule 111.05 on collaborative law took effect January 1, 2008. Id.

75[] E-mail from Linda Wray to the Drafting Committee of the Uniform Collaborative Law Act (Mar. 14, 2010 6:56 PM) (on file with author).

[76] Id.

[77] Id.

[78] Id.

[79] See H.B. 467, 128th Gen. Assem., Reg. Sess. (Ohio 2010) (Ohio Collaborative Family Law Act) (introduced Mar. 15, 2010).

[80] Id. § 1 (Section 3117.11(E)). Title XXXI of the Ohio Revised Code deals with domestic relations and children.

[81] Final Acts and Legislation, NCCUSL, http://www.nccusl.org/Update/ActSearchResults.aspx (last visited Mar. 26, 2010).