In Re: Amendments to Rule Regulating The Florida Bar 4-1.19 and Florida Family Law Rule of Procedure 12.745 (Collaborative Law Process)

Supreme Court of Florida
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No. SC16-1685
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IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR 4-
1.19 AND FLORIDA FAMILY LAW RULE OF PROCEDURE 12.745
(COLLABORATIVE LAW PROCESS).
[May 18, 2017]
PER CURIAM.
This matter is before the Court for consideration of proposed amendments to
the Rules Regulating the Florida Bar (Bar Rules) and the Florida Family Law
Rules of Procedure (Family Law Rules), pertaining to the collaborative law
process in family law cases. We have jurisdiction. See art. V, §§ 2(a), 15, Fla.
Const.
BACKGROUND
In In re Amendments to the Florida Family Law Rules of Procedure, 84 So.
3d 257 (Fla. 2012), this Court considered proposed amendments to the Family Law
Rules addressing the collaborative law process. As we explained in our 2012
opinion, the collaborative law process is a contractual, voluntary, and
nonadversarial dispute resolution process, occurring between represented parties,
to resolve some family law matters. Id. at 258. Although we commended the
Family Law Rules Committee (Rules Committee) for its study of the collaborative
law process, we declined to adopt the proposed rule at that time in part because
there was “the possibility of legislative action addressing the use of the
collaborative law process in Florida.” Id.
Since our decision, in 2016, the Florida Legislature adopted the
Collaborative Law Process Act. See ch. 2016-93, Laws of Fla. The purpose of the
Act was to create “a uniform system of practice” for a collaborative law process in
family law cases to encourage “the peaceful resolution of disputes and the early
settlement of pending litigation through voluntary settlement procedures” and to
preserve the working relationship between parties to a family law dispute. See id.
§ 3. The Legislature also provided that the provisions of the Act would not take
effect “until 30 days after the Florida Supreme Court adopts rules of procedure and
professional responsibility consistent with this act.” See id. § 8.
Consistent with this charge, The Florida Bar and the Rules Committee have
jointly filed a petition requesting that the Court adopt new Bar Rule 4-1.19
(Collaborative Law Process in Family Law) and new Family Law Rule 12.745
(Collaborative Law Process). The Florida Bar Board of Governors unanimously
approved the proposed rules for submission to the Court. The Bar and the Rules
Committee published formal notice of their intent to file a petition in The Florida
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Bar News and directed that comments be filed with the Court; the Court received
one comment in favor of the proposed amendments.1 In November 2016, we
issued an order requesting that the Steering Committee on Families and Children in
the Court and the Supreme Court Committee on Alternative Dispute Resolution
Rules and Policy also file comments addressing the proposals. The Bar and the
Rules Committee were requested to file a response to these comments.
The Court heard oral argument in this matter. At oral argument, concerns
were raised about the amount of costs and fees that may be incurred in this
voluntary process. To address those concerns, following oral argument, we issued
an order directing the Bar and the Rules Committee to file an amended proposal
for Bar Rule 4-1.19, or other amendments to the Rules of Professional Conduct as
necessary, to include provisions requiring collaborative lawyers to inform clients
considering participation in the collaborative law process as to the fees or costs the
client may reasonably expect to incur, including the lawyer’s fees and reasonable
fees for the neutral mental health and financial professionals who would be
retained to participate in the process. The Bar and the Rules Committee submitted
1. This comment, from Attorney Robert J. Merlin, also included minimum
standards for the certification of collaborative attorneys, mental health
professionals, and financial professionals, as well as standards for introductory
collaborative training. We do not address those standards in this opinion as that is
outside the scope of the Petition.
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their amended proposal that adds subdivision (a)(8) to Bar Rule 4-1.19 as well as a
corresponding comment explaining the obligation to inform the client about costs
and fees, including those of all professionals.
We have fully considered the joint petition, the comments and the responses,
and the amended proposal. In accordance with the Act and the Legislature’s
request that the Court adopt rules of procedure and professional responsibility
consistent with the Act, we adopt new Bar Rule 4-1.19 and new Family Law Rule
12.745 as revised by the Bar and the Rules Committee, with some modifications.
We discuss the more significant aspects of the new rules below.
AMENDMENTS
New Bar Rule 4-1.19 (Collaborative Law Process in Family Law) outlines
the professional conduct required of an attorney representing a party in the
collaborative law process. Subdivision (a) (Duty to Explain Process to Prospective
Client) of the rule requires a lawyer to obtain a client’s informed consent to
proceed in the collaborative law process; this requires the lawyer to provide the
client with sufficient information about the collaborative law process. Among the
eight items listed in subdivision (a), the lawyer is required to advise his or her
client as to the benefits and risks associated with the collaborative law process to
resolve family law matters; other alternatives to the collaborative law process; that
participation in the collaborative law process is voluntary, and the client may
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unilaterally terminate his or her participation for any reason; and the limitations on
the lawyer’s ability to represent the client in subsequent legal proceedings if the
collaborative law process is terminated. We note, in particular, that lawyers have
an obligation to inform their clients of the fees or costs the client may reasonably
expect to incur in the collaborative law process, including the lawyer’s fee and
reasonable fees for mental health and financial professionals. This obligation is
codified in Bar Rule 4-1.19(a)(8) that sets forth the obligation of the lawyer to
explain the “fees and costs the client can reasonably expect to incur in the
collaborative law process, including the fees of the lawyers, mental health
professionals, and financial professionals.”
Also Bar Rule 4-1.19, subdivision (b) (Written Agreement Required)
provides that a lawyer may not represent a client in the collaborative law process
unless all lawyers and clients participating in the process have signed a written
agreement. Subdivision (c) (Duty to Address Domestic Violence) provides that,
before a lawyer agrees to represent a client in the collaborative law process, the
lawyer must reasonably inquire whether the client has a coercive or violent
relationship with another party in the family law matter; the lawyer must also make
reasonable efforts throughout the process to continue to assess whether a coercive
or violent relationship exists. A lawyer may not represent a party in the
collaborative law process if the lawyer reasonably believes the client has a history
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of any coercive or violent relationship with another party unless certain criteria are
met.
New Family Law Rule 12.745 (Collaborative Law Process) outlines
procedures for the collaborative law process, including in instances where a family
law proceeding is pending before a court and the parties elect to enter into the
collaborative law process.2 Subdivision (b) (Collaborative Law Process) describes
how the collaborative law process is initiated, how it may be concluded or
terminated, and how a party participating in the collaborative law process may
discharge his or her attorney or how the attorney may withdraw from
representation. Additionally, subdivision (d) (Alternative Dispute Resolution
Permitted) of rule 12.745 provides that the rule shall not be construed to prohibit
parties from using any other permissible form of alternative dispute resolution to
reach a settlement on any of the issues in the collaborative law process. Indeed,
collaborative law is only one of several types of alternative dispute resolution
available to parties in family law cases. See, e.g., Fla. Fam. L. R. P. 12.740
(Family Mediation); 12.741 (Mediation Rules); 12.742 (Parenting Coordination).
Finally, subdivision (f) (Disqualification of Collaborative Lawyer and Lawyers in
Associated Law Firm) provides that a lawyer representing a party in the
2. We have revised the Rules Committee’s proposal throughout rule 12.745
to refer to the “court,” rather than the “tribunal.”
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collaborative law process, or any lawyer working in the same law firm, is
disqualified from representing the party in a court proceeding related to the
collaborative matter except in specifically identified circumstances.
CONCLUSION
Accordingly, we amend the Rules Regulating the Florida Bar and the Florida
Family Law Rules of Procedure as set forth in the appendix to this opinion. New
language is indicated by underscoring; deletions are indicated by struck-through
type. The comments are offered for explanation only and are not adopted as an
official part of the rules. The amendments shall become effective July 1, 2017, at
12:01 a.m.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Rules Regulating The Florida Bar and Florida Family Law
Rules of Procedure
Judge Laurel Moore Lee, Chair, Family Law Rules Committee, Tampa, Florida;
William J. Schifino, Jr., President, The Florida Bar, Tampa, Florida; Michael J.
Higer, President-elect, The Florida Bar, Miami, Florida; Michelle R. Suskauer,
President-elect Designate, West Palm Beach, Florida; and John F. Harkness, Jr.,
Executive Director, Lori S. Holcomb, Director, Division of Ethics and Consumer
Protection, Elizabeth Clark Tarbert, Ethics Counsel, and Krys Godwin, Staff
Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
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Robert J. Merlin of Robert J. Merlin, P.A., Coral Gables, Florida; Judge Christine
Greider, Chair, Steering Committee on Families and Children in the Court, Naples,
Florida; Judge Rodney Smith, Chair, Committee on Alternative Dispute Resolution
Rules and Policy, Miami, Florida; Susan C. Marvin, Chief, Alternative Dispute
Resolution Center, Tallahassee, Florida; and Edward G. Rubinoff of Kutner,
Rubinoff & Moss, P.A., Coconut Grove, Florida,
Responding with Comments
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APPENDIX
RULES REGULATING THE FLORIDA BAR
RULE 4-1.19 COLLABORATIVE LAW PROCESS IN FAMILY LAW
(a) Duty to Explain Process to Prospective Client. A lawyer must obtain
the informed consent of a prospective client in a family law matter to proceed in
the collaborative law process after providing the prospective client with sufficient
information about the collaborative law process, including, but not limited to, the
following:
(1) the benefits and risks of the collaborative law process to resolve
a family law matter;
(2) the nature and scope of the matter to be resolved through the
collaborative law process;
(3) the material benefits and risks of participating in the
collaborative law process;
(4) alternatives to the collaborative law process;
(5) that participation in the collaborative law process is voluntary
and any client may unilaterally terminate the collaborative law process for any
reason;
(6) that the collaborative law process will terminate if any
participating client initiates a proceeding or seeks court intervention in a pending
proceeding related to the collaborative law matter after the clients have signed the
collaborative law agreement;
(7) limitations on the lawyer’s participation in subsequent
proceedings imposed by family law court rules on the collaborative law process;
and
(8) fees and costs the client can reasonably expect to incur in the
collaborative law process, including the fees of the lawyers, mental health
professionals, and financial professionals.
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(b) Written Agreement Required. A lawyer is prohibited from
representing a client in the collaborative process in a family law matter unless all
participating lawyers and clients sign a written agreement that includes:
(1) a statement of the clients’ intent to resolve a matter through the
collaborative law process under these rules;
(2) a description of the nature and scope of the matter;
(3) identification of the lawyers participating in the collaborative
law process and which client(s) they represent;
(4) that the clients will make timely, full, candid and informal
disclosure of information related to the collaborative matter without formal
discovery and will promptly update previously disclosed information that has
materially changed;
(5) that participation in the collaborative law process is voluntary
and any client may unilaterally terminate the collaborative law process for any
reason;
(6) that the collaborative law process will terminate if any
participating client initiates a proceeding or seeks court intervention in a pending
proceeding related to the collaborative law matter after the clients have signed the
collaborative law agreement; and
(7) that the clients understand that their lawyers may not represent
the clients or any other person before a court in a proceeding related to the
collaborative law matter except as provided by court rule.
(c) Duty to Address Domestic Violence. A lawyer must reasonably
inquire whether a prospective client has a history of any coercive or violent
relationship with another party in a family law matter before agreeing to represent
a client in the collaborative law process and must make reasonable efforts to
continue to assess whether a coercive or violent relationship exists between parties
in a family law matter throughout the collaborative law process. A lawyer may not
represent a client in the collaborative law process in a family law matter and must
terminate the client-lawyer relationship in an existing collaborative law process in
a family law matter if the lawyer reasonably believes that the lawyer’s client has a
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history of any coercive or violent relationship with another party in the matter
unless:
(1) the client requests to begin or continue the collaborative law
process; and
(2) the lawyer reasonably believes that the safety of the client can
be protected during the collaborative law process.
COMMENT
The collaborative law process involves the nonadversarial resolution of
disputes through voluntary settlement procedures. Florida statutes and court rules
permit collaborative law to resolve disputes in family law. Lawyers engaging in
the collaborative law process in family law matters must comply with legislative
and court requirements regarding the process. As part of this nonadversarial and
voluntary resolution of disputes, lawyers who engage in the collaborative law
process in a family law matter, and any other lawyers in that lawyer’s firm, may
not afterwards represent any party in any related proceeding except to request that
a court approve the settlement reached during the collaborative law process or in
specified emergency situations in accordance with family law court rules.
Before agreeing with the client to proceed in the collaborative law process in
a family law matter, a lawyer should first consider whether a prospective client is
an appropriate candidate for the collaborative law process and must provide the
prospective client with sufficient information regarding the benefits and risks of
the process, including the lawyer’s limitations regarding subsequent proceedings.
See also rules 4-1.4 and 4-1.2. To determine whether a prospective client is a good
candidate for the collaborative law process, the lawyer must inquire regarding any
history of coercive or violent relationships with any other persons who would be
parties to the collaborative law process in the family law matter. See also rules 4-
1.1 and 4-1.2. The lawyer also must provide the prospective client with
information about other reasonably available alternatives to resolve the family law
matter, which may include litigation, mediation, arbitration, or expert evaluation.
See also rule 4-1.4. The lawyer should assess whether the prospective client is
likely to cooperate in voluntary discovery and discuss that process with the
prospective client. See rules 4-1.1 and 4-1.2. The lawyer should also advise the
prospective client that the collaborative law process will terminate if any party
initiates litigation or other court intervention in the matter after signing a
collaborative law agreement. Id. The lawyer should discuss with the client the
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fact that the collaborative law process is voluntary and any party to a collaborative
law agreement may terminate the process at any time. Id. The lawyer must
provide the client with information about costs the client can reasonably expect to
incur, including fees and costs of all professionals involved. See rules 4-1.4 and 4-
1.5.
An agreement between a lawyer and client to engage in the collaborative law
process is a form of limited representation which must comply with all
requirements of limited scope representations, including the requirement that the
client must give informed consent in writing. See rule 4-1.2(c). The agreement
between lawyer and client should include the nature and scope of the matter to be
resolved through the collaborative law process, the material benefits and risks to
participating in the collaborative law process, and the limitations on the lawyer’s
representation.
If a client agrees to participate in the collaborative law process and then
terminates the process or initiates litigation regarding the dispute, the lawyer
should terminate the representation. See rule 4-1.16.
FLORIDA FAMILY LAW RULES OF PROCEDURE
RULE 12.745. COLLABORATIVE LAW PROCESS
(a) Application. This rule governs all proceedings under chapter 61, part
III, Florida Statutes.
(b) Collaborative Law Process.
(1) Initiating Process.
(A) A collaborative law process begins, regardless of whether
a legal proceeding is pending, when the parties sign a collaborative law
participation agreement.
(B) When a proceeding is pending before a court, the parties
may sign a collaborative law participation agreement to seek to resolve a matter
related to the proceeding. The parties shall promptly file with the court a notice of
the agreement after it is signed and it shall operate as an application for a stay of
the proceeding. A court in which a proceeding is stayed under this subdivision
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may require the parties and collaborative lawyers to provide a status report on the
collaborative law process and the proceeding. The status report may only indicate
whether the process is ongoing or concluded and no other information. The status
report may not include a report, assessment, recommendation, finding, or other
communication regarding a collaborative matter. A court shall provide notice to
the parties and an opportunity to be heard before dismissing a proceeding, in which
a notice of collaborative process is filed, based on delay or failure to prosecute. A
court may not consider a communication made in violation of this subdivision.
(2) Concluding and Terminating Process. A collaborative law
process is concluded by:
(A) the resolution of a collaborative matter as evidenced by a
signed record;
(B) the resolution of a part of the collaborative matter,
evidenced by a signed record, in which the parties agree that the remaining parts of
the matter will not be resolved in the process;
(C) a party unilaterally terminating the collaborative law
process, with or without cause, by
(i) giving notice to other parties in a record that the
process is ended,
(ii) beginning a contested proceeding related to a
collaborative matter without the agreement of all parties, or
(iii) in a pending proceeding related to the matter:
a. initiating a pleading, motion, order to show
cause, or request for a conference with the court;
b. requesting that the proceeding be put on the
court’s active calendar; or
c. taking similar action requiring notice to be
sent to the parties; or
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(D) except as otherwise provided by subdivision (b)(3), a
party discharging a collaborative lawyer or a collaborative lawyer withdrawing
from further representation of a party.
If a proceeding is pending before a court, the parties shall promptly
file with the court notice in a record when a collaborative law process concludes.
Any stay of the proceeding is lifted when the notice is filed. The notice may not
specify any reason for termination of the process.
(3) Discharge or Withdrawal from Representation. A party’s
collaborative lawyer shall give prompt notice to all other parties in a record of a
discharge or withdrawal. If a proceeding was pending prior to the initiation of the
collaborative process, the party’s collaborative lawyer shall comply with the
requirements of Florida Rule of Judicial Administration 2.505. Notwithstanding
the discharge or withdrawal of a collaborative lawyer, a collaborative law process
continues, if not later than 30 days after the date that the notice of the discharge or
withdrawal of a collaborative lawyer is sent to the parties:
(A) the unrepresented party retains a successor collaborative
lawyer; and
(B) in a signed record:
(i) the parties consent to continue the process by
reaffirming the collaborative law participation agreement; and
(ii) the agreement is amended to identify the successor
collaborative lawyer and the successor attorney signs the participation agreement.
(c) Approval of Interim Agreements. A collaborative law process does
not conclude if, with the consent of the parties, a party requests a court to approve
a written agreement resolving an issue in the collaborative matter while other
issues remain pending.
(d) Alternative Dispute Resolution Permitted. Nothing in this rule
shall be construed to prohibit the parties from using, by mutual agreement, any
other permissible form of alternative dispute resolution to reach a settlement on
any of the issues included in the collaborative process.
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(e) Emergency Order. During a collaborative law process, a court may
issue emergency orders to protect the health, safety, welfare, or interest of a party
or a family or household member as defined in section 741.28, Florida Statutes.
(f) Disqualification of Collaborative Lawyer and Lawyers in
Associated Law Firm.
(1) Except as otherwise provided in subdivision (f)(3), a
collaborative lawyer is disqualified from appearing before a court to represent a
party in a proceeding related to the collaborative matter.
(2) Except as otherwise provided in subdivisions (b)(3) and (c), a
lawyer in a law firm with which the collaborative lawyer is associated is
disqualified from appearing before a court to represent a party in a proceeding
related to the collaborative matter if the collaborative lawyer is disqualified from
doing so under subdivision (f)(1).
(3) A collaborative lawyer or a lawyer in a law firm with which the
collaborative lawyer is associated may represent a party:
(A) to ask a court to approve an agreement resulting from the
collaborative law process; or
(B) to seek to defend an emergency order to protect the
health, safety, welfare, or interest of a party, or a family or household member as
defined in section 741.28, Florida Statutes, if a successor lawyer is not
immediately available to represent that person, but only until the party or family or
household member is represented by a successor lawyer or reasonable measures
are taken to protect the health, safety, welfare, or interest of that person.
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