Bill Summaries: H32 (2019-2020 Session)

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  • Summary date: Feb 6 2019 - View summary

    Enacts Article 53 to GS Chapter 1, titled the Uniform Collaborative Law Act.

    Sets out defined terms for the Article. Establishes that the Article applies to a collaborative law participation agreement that meets the specified requirements, described below, signed on or after the effective date of the act. Adds that the Article does not apply to any claim or proceeding arising under GS Chapters 35A (Incompetency and Guardianship), 35B (Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act), or 50 (Divorce And Alimony). Prohibits minors, unborn individuals, and incompetent individuals from being parties to a collaborative law process.

    Establishes the requirements for a collaborative law participation agreement (agreement) as follows. The agreement must (1) be in a record; (2) be signed by the parties and their collaborative lawyers; (3) state the parties' intentions to resolve a collaborative matter through the collaborative law process of the Article; (4) describe the nature and scope of the collaborative matter; (5) identify the collaborative lawyer who represents each party; (6) contain a statement by each collaborative lawyer confirming the collaborative lawyer's representation of a party in the collaborative law process; (7) state that the collaborative lawyers are disqualified from representing their respective parties in a proceeding before a tribunal related to the collaborative matter, except as provided; and (8) provide an address for each party where any notice required by the Article may be sent. Permits parties to agree to include additional provisions that are not inconsistent with the Article in an agreement.

    Establishes that participation in a collaborative law process is voluntary and prohibits a tribunal from ordering a person to participate over that person's objection. Establishes that the process begins when the parties sign a collaborative law participation agreement, and concludes upon (1) resolution of a collaborative matter, evidenced by a signed record; (2) resolution of part of a collaborative matter, evidenced by a signed record, in which the parties agree the remaining parts will not be resolved in the process; or (3) termination of the process. Termination occurs when (1) a party or collaborative lawyer gives notice to all other parties in a record that the process is ended; (2) a party begins a proceeding related to the collaborative matter without the agreement of all parties, except as provided, or in a pending related proceeding, a party initiates a pleading, motion, order to show cause, or request for a conference with a tribunal without the agreement of all parties or requests that the proceeding be put on the tribunal's active calendar; or (3) a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party. Requires a party's collaborative lawyer to give prompt notice to all record parties of a discharge or withdrawal. Permits a party to terminate a process with or without cause. Provides for the continuance of a process after the discharge or withdrawal of a collaborative lawyer, as specified. Specifies that a process does not conclude if a party requests a tribunal to approve a resolution of all or part of the collaborative matter and all parties consent, as evidenced by a signed record. Adds that an agreement can provide additional methods to conclude the process. Further provides that an agreement tolls all legal time periods applicable to legal rights and issues under law, including statutes of limitations, statutes of repose, filing deadlines, and other time limitations, between the parties from the time the parties sign an agreement until termination. Establishes that the tolling period terminates 30 days after receipt by the last party to receive the notice of an intent to terminate the tolling period.

    Requires parties in a pending proceeding to file notice of the agreement with tribunal in which a proceeding is pending after it is signed, which operates as a stay of the proceeding, as well as a notice when the process concludes, which operates to lift the stay. Permits the tribunal to require a status report on the process and proceedings as described. Prohibits a status report from including, and a tribunal from considering, a report, assessment, evaluation, recommendation, finding, or other communication regarding the collaborative law process or matter. Directs a tribunal to provide notice and a hearing opportunity before dismissing a proceeding in which a notice of collaborative process is filed based on delay or failure to prosecute.

    Authorizes a tribunal to issue emergency orders during the collaborative process for that or an already pending proceeding to protect the health, safety, welfare, or interest of a party or otherwise preserve the status quo.

    Authorizes a tribunal to approve an agreement resulting from a collaborative law process.

    Provides for disqualifications of collaborative lawyers and associated lawyers regarding appearing in related matters, and includes lawyers representing a party with or without fee. Provides for associated disqualified lawyers to represent a party without fee in a related matter if certain requirements are met. Provides for the representation of a governmental entity by an associated lawyer in the same or related matter if certain requirements are met.

    Details disclosure requirements during the collaborative law process. Allows parties to define the scope and terms of disclosure during the process.

    Clarifies that the Article does not affect professional responsibility standards to lawyers or other licensed professionals.

    Details the responsibility of a prospective collaborative lawyer regarding informed consent of a prospective party before signing a collaborative law participation agreement.

    Establishes that no person incurs liability for their decision to participate in the process or not.

    Makes all collaborative law communication confidential to anyone other than the parties, a party's collaborative lawyer, or a nonparty (with consent of all parties signed in a record), or as provided by other state law.

    Establishes that a collaborative law communication is privileged, not subject to discovery, and not admissible in evidence. Specifies that evidence or information that is otherwise admissible or subject to discovery does not become admissible or protected from discovery solely because of its disclosure or use in a collaborative law process. Provides for waiver and preclusion of privilege, as described. Also sets out limitations of privilege, establishing there is no privilege for communications that are public records, threats, or statements of a plan to inflict bodily injury or commit a crime of violence; intentionally used to plan, commit, or attempt to commit a crime or conceal an ongoing crime or criminal activity, or part of an agreement resulting from the collaborative law process evidenced by a record signed by all parties. Further provides that privilege does not apply for proof in professional misconduct or malpractice complaints, when evidence is not otherwise available in the prosecution of a felony or for contract disputes arising out of a collaborative law process, or if the parties agree in advance that all or part of the process is not privileged.

    Authorizes a tribunal to find that parties intended to enter into a collaborative law participation agreement, even if the requirements of the Article are not met, if there is a signed record of that intention and the parties reasonably believed they were participating in a collaborative law process, whereby the tribunal can enforce the agreement, apply the disqualification provisions of the Article, and apply privileges of the Article.

    Clarifies that the Article does not prohibit parties from mutually agreeing to alternative forms of dispute resolution.

    Encourages the promotion of uniformity of the law in applying and construing the act.

    Provides that the Article modifies, limits, or supersedes the federal Electronic Signatures in Global National Commerce Act, but does not modify, limit, or supersede Section 101(c) of that Act, or authorize electronic delivery of any of the notices set out in Section 103(b) of that Act.

    Includes a severability clause.

    Directs the Revisor of Statutes to print all relevant portions of the Official Comments to the Uniform Collaborative Law Act and all explanatory comments of the drafter of this act as deemed appropriate.

    Effective October 1, 2019.