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H. B. No. 467 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Representatives Harwood, Blessing
Cosponsors:
Representatives Murray, Wagner, Pillich, McGregor, Book, Mecklenborg, Phillips, Bolon, Letson, Hollington, Grossman, Bacon, Belcher, Williams, B.
A BILL
To enact sections 3117.11, 3117.12, 3117.13, 3117.14,
3117.15, 3117.16, 3117.17, 3117.18, 3117.19,
3117.20, 3117.21, 3117.22, 3117.23, 3117.24,
3117.25, 3117.26, and 3117.27 of the Revised Code
to establish a statutory collaborative family law
process to aid in the resolution of family law
disputes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3117.11, 3117.12, 3117.13, 3117.14,
3117.15, 3117.16, 3117.17, 3117.18, 3117.19, 3117.20, 3117.21,
3117.22, 3117.23, 3117.24, 3117.25, 3117.26, and 3117.27 be
enacted to read as follows:
Sec. 3117.11. As used in sections 3117.11 to 3117.27 of the
Revised Code:
(A) "Collaborative family law communication" means any
statement that occurs after the parties sign a collaborative
family law participation agreement and before the collaborative
family law process is concluded and that is made for the purpose
of conducting, participating in, continuing, or reconvening a
collaborative law process.
(B) "Collaborative family law participation agreement" means
an agreement by persons to participate in a collaborative family
law process.
(C) "Collaborative family law process" means a procedure
intended to resolve a matter without intervention by a court in
which parties sign a collaborative family law participation
agreement and are represented by collaborative family lawyers.
(D) "Collaborative family lawyer" means a lawyer who
represents a party in a collaborative family law process.
(E) "Collaborative matter" or "matter" means 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. The term
includes a dispute, claim, or issue in a proceeding.
(F) "Family or household member" has the same meaning as in
section 3113.31 of the Revised Code.
(G) "Law firm" means an association of lawyers who practice
law together in a partnership, professional corporation, sole
proprietorship, limited liability company, or other association,
lawyers employed in a legal services organization, the legal
department of a corporation or other organization, or the legal
department of a government or governmental subdivision, agency, or
instrumentality.
(H) "Nonparty participant" means a person, other than a party
and the party's collaborative family lawyer, that participates in
a collaborative family law process.
(I) "Party" means a person that signs a collaborative family
law participation agreement and whose consent is necessary to
resolve a matter.
(J) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other
legal or commercial entity.
(K) "Proceeding" means a judicial, administrative, arbitral,
or other adjudicative process before a court, including related
prehearing and post-hearing motions, conferences, and discovery.
(L) "Prospective party" means a person that discusses the
possibility of signing a collaborative family law participation
agreement with a prospective collaborative family lawyer.
(M) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(N) "Related to a collaborative family law matter" or
"related to a matter" means involving the same parties,
transaction or occurrence, nucleus of operative fact, claim,
issue, or dispute as a matter.
(O) "Sign" means, with present intent to authenticate or
adopt a record in order, to do either of the following:
(1) Execute or adopt a tangible symbol;
(2) Attach to or logically associate with the record an
electronic symbol, sound, or process.
Sec. 3117.12. (A) Sections 3117.11 to 3117.27 of the Revised
Code apply to a collaborative family law participation agreement
that meets the requirements of section 3117.13 of the Revised Code
and is signed on or after the effective date of this section.
(B) A court may not order a party to participate in a
collaborative family law process over that party's objection.
Sec. 3117.13. (A) A collaborative family law participation
agreement must be in a record, be signed by the parties, and
include all of the following:
(1) A statement of the parties' intent to resolve a matter
through a collaborative family law process under sections 3117.11
to 3117.27 of the Revised Code;
(2) A description of the nature and scope of the matter;
(3) The identity of the collaborative family lawyer who
represents each party in the collaborative family law process;
(4) A statement by each collaborative family lawyer
confirming the lawyer's representation of a party in the
collaborative family law process.
(B) Parties to a collaborative family law participation
agreement may agree to include additional provisions not
inconsistent with sections 3117.11 to 3117.27 of the Revised Code.
Sec. 3117.14. (A) A collaborative family law process begins
when the parties sign a collaborative family law participation
agreement.
(B) A collaborative family law process is concluded by any of
the following:
(1) A negotiated resolution of the matter as evidenced by a
signed record;
(2) A negotiated resolution of a portion of the matter as
evidenced by a signed record in which the parties agree that the
remaining portions of the matter will not be resolved in the
collaborative family law process;
(3) Termination of the process under division (C) of this
section.
(C) A collaborative family law process terminates when any of
the following occurs:
(1) A party gives notice in a record that the collaborative
family law process is ended.
(2) A party does either of the following:
(a) Begins a proceeding related to the collaborative family
law matter without the agreement of all parties;
(b) In a pending proceeding related to the collaborative
family law matter, does any of the following:
(i) Initiates a pleading, motion, order to show cause, or
request for a conference with the court;
(ii) Requests that the proceeding be put on the court's
docket;
(iii) Takes similar action requiring notice to be sent to the
parties;
(iv) Except as otherwise provided by division (E)(2) of this
section, discharges a collaborative family lawyer.
(3) A collaborative family lawyer withdraws from further
representation of a party.
(4) Termination occurs in any other way provided for in the
collaborative family law participation agreement.
(D) A party may terminate a collaborative family law process
with or without cause. A notice of termination need not specify a
reason for terminating the process.
(E)(1) A collaborative family lawyer who is discharged or who
withdraws shall give prompt notice in a record of the discharge or
withdrawal to all other parties.
(2) Notwithstanding the discharge or withdrawal of a
collaborative family lawyer, a collaborative family law process
continues if the unrepresented party engages a successor
collaborative family lawyer, and, in a signed record, all parties
consent to continue the process by reaffirming the collaborative
family law participation agreement, the collaborative family law
participation agreement is amended to identify the successor
collaborative family lawyer, and the successor collaborative
family lawyer confirms the lawyer's representation of a party in
the collaborative family law process.
(F) A collaborative family law process does not terminate if,
with the consent of all parties, a party requests a court to
approve a negotiated resolution of the matter or any portion of
the matter as evidenced by a signed record.
Sec. 3117.15. (A) Parties to a proceeding pending before a
court may sign a collaborative family law participation agreement
to seek to resolve a matter related to the proceeding. Parties
shall promptly file a notice of the agreement with the court after
the collaborative family law participation agreement is signed.
Subject to division (C) of this section, the filing operates as a
stay of the proceeding.
(B) Parties shall promptly file a notice of termination in a
record with the court when a collaborative family law process
terminates. The stay of the proceeding under division (A) of this
section is lifted when the notice is filed with the court. The
notice may not specify any reason for the termination.
(C) A court may require parties and collaborative family
lawyers to provide status reports on the proceeding. A status
report may not include a report, assessment, evaluation,
recommendation, finding, or other communication regarding a
collaborative family law process, except that a court may require
parties and lawyers to disclose in a status report whether the
process is ongoing or concluded.
A communication made in violation of this division may not be
considered by a court.
Sec. 3117.16. (A) Except as otherwise provided in division
(C) of this section, a collaborative family lawyer may not appear
before a court to represent a party in a proceeding related to the
collaborative family law matter.
(B) Except as otherwise provided in division (C) of this
section and in sections 3117.17 and 3117.18 of the Revised Code, a
lawyer in a law firm with which the collaborative family lawyer is
associated may not appear before a court to represent a party in a
proceeding related to the collaborative family law matter if the
collaborative family lawyer is disqualified from doing so under
division (A) of this section.
(C) A collaborative family lawyer or a lawyer in a law firm
with which the collaborative family lawyer is associated may
represent a party for the following purposes:
(1) To ask a court to approve an agreement resulting from the
collaborative family law process;
(2) To seek or defend an emergency order to protect the
health, safety, welfare, or interests of a party or of a family or
household member of a party if a successor lawyer is not
immediately available to represent the party or family or
household member of the party. If a successor lawyer is not
immediately available to represent the party or family or
household member of the party, divisions (A) and (B) of this
section do not apply until a successor lawyer assumes
representation of the party or family or household member of the
party or reasonable measures are taken to protect the health,
safety, welfare, or interests of the party or family or household
member of the party.
Sec. 3117.17. (A) The disqualification of a collaborative
family lawyer under division (A) of section 3117.16 of the Revised
Code applies to a collaborative family lawyer representing a party
without fee.
(B) After a collaborative family law process concludes,
another lawyer in a law firm with which the collaborative family
lawyer is associated may represent the party without fee in the
collaborative matter or a matter related to the collaborative
matter if all of the following apply:
(1) The party has an annual income that qualifies the party
for free legal representation under the criteria established by
the law firm for free legal representation.
(2) The collaborative family law participation agreement so
provides.
(3) The collaborative family lawyer is isolated from any
participation in the collaborative matter or a matter related to
the collaborative matter through procedures within the law firm
that are reasonably calculated to isolate the collaborative family
lawyer from participation in the collaborative matter or a matter
related to the collaborative matter.
Sec. 3117.18. (A) The disqualification of a collaborative
family lawyer under division (A) of section 3117.16 of the Revised
Code applies to a collaborative family lawyer representing a party
that is a government or governmental subdivision, agency, or
instrumentality.
(B) After a collaborative family law process concludes,
another lawyer in a law firm with which the collaborative family
lawyer is associated may represent the government or governmental
subdivision, agency, or instrumentality in the collaborative
matter or a matter related to the collaborative matter if both of
the following apply:
(1) The collaborative family law participation agreement so
provides.
(2) The collaborative family lawyer is isolated from any
participation in the collaborative matter or matter related to the
collaborative matter through procedures within the law firm that
are reasonably calculated to isolate the collaborative family
lawyer from participation in the collaborative matter or matter
related to the collaborative matter.
Sec. 3117.19. During the collaborative family law process,
at the request of another party, a party shall make timely, full,
candid, and informal disclosure of information related to the
collaborative matter without formal discovery and shall update
promptly information that has materially changed. Parties may
define the scope of disclosure, except as otherwise provided by
law.
Sec. 3117.20. Sections 3117.11 to 3117.27 of the Revised
Code do not affect the professional responsibility obligations and
standards applicable to a lawyer or other licensed professional or
the statutory obligation of a person to report abuse or neglect of
a child or adult.
Sec. 3117.21. A collaborative family law communication is
confidential to the extent agreed by the parties in a signed
record or as provided by the law of this state.
Sec. 3117.22. (A) Subject to sections 3117.23 and 3117.24 of
the Revised Code, a collaborative family law communication is
privileged under division (B) of this section, is not subject to
discovery, and is not admissible in evidence.
(B) In a proceeding, the following privileges apply:
(1) A party may refuse to disclose, and may prevent any other
person from disclosing, a collaborative family law communication.
(2) A nonparty participant may refuse to disclose, and may
prevent any other person from disclosing, a collaborative family
law communication of the nonparty participant.
(C) Evidence or information that is otherwise admissible or
subject to discovery does not become inadmissible or protected
from discovery solely by reason of its disclosure or use in a
collaborative family law process.
Sec. 3117.23. (A) A privilege under section 3117.22 of the
Revised Code may be waived in a record or orally during a
proceeding if it is expressly waived by all parties and, in the
case of the privilege of a nonparty participant, it is also
expressly waived by the nonparty participant.
(B) A person that discloses or makes a representation about a
collaborative family law communication that prejudices another
person in a proceeding may not assert a privilege under section
3117.22 of the Revised Code relating to that communication.
Sec. 3117.24. (A) There is no privilege under section
3117.22 of the Revised Code for a collaborative family law
communication that is any of the following:
(1) Available to the public under section 149.43 of the
Revised Code or made during a session of a collaborative family
law process that is open, or is required by law to be open, to the
public;
(2) A threat or statement of a plan to inflict bodily injury
or commit a crime of violence;
(3) Intentionally used to plan a crime, commit or attempt to
commit a crime, or conceal an ongoing crime or ongoing criminal
activity;
(4) In an agreement resulting from the collaborative family
law process, evidenced by a record signed by all parties to the
agreement.
(B) The privileges under section 3117.22 of the Revised Code
for a collaborative family law communication do not apply to the
extent that a communication is either of the following:
(1) Sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice arising from
or related to a collaborative family law process;
(2) Sought or offered to prove or disprove abuse, neglect,
abandonment, or exploitation of a child, unless a children's or
protective service agency or an adult protective services agency
is a party to or otherwise participates in the collaborative
family law process.
(C) There is no privilege under section 3117.22 of the
Revised Code if a court finds, after a hearing in camera, that the
party seeking discovery or the proponent of the evidence has shown
that the evidence is not otherwise available, the need for the
evidence substantially outweighs the interest in protecting
confidentiality, and the collaborative family law communication is
sought or offered in a criminal action or in a proceeding seeking
rescission or reformation of a contract arising out of the
collaborative family law process or in which a defense to avoid
liability on the contract is asserted.
(D) If a collaborative family law communication is subject to
an exception under division (B) or (C) of this section, only the
portion of the communication necessary for the application of the
exception may be disclosed or admitted.
(E) Disclosure or admission of evidence excepted from the
privilege under division (B) or (C) of this section does not
render the evidence or any other collaborative family law
communication discoverable or admissible for any other purpose.
(F) The privileges under section 3117.22 of the Revised Code
do not apply if the parties agree in advance in a signed record,
or if a record of a proceeding reflects agreement by the parties,
that all or part of a collaborative family law process is not
privileged. This division does not apply to a collaborative family
law communication made by a person that did not receive actual
notice of the agreement before the communication was made.
Sec. 3117.25. Even though a collaborative family law
participation agreement fails to meet the requirements of section
3117.13 of the Revised Code, a court may find that the parties
intended to enter into a collaborative family law participation
agreement if the parties signed a record indicating an intention
to enter into a collaborative family law participation agreement
and the parties reasonably believed they were participating in a
collaborative family law process. If a court makes such a finding,
sections 3117.11 to 3117.27 of the Revised Code apply to the same
extent as if the parties had entered into a valid collaborative
family law participation agreement.
Sec. 3117.26. Sections 3117.11 to 3117.27 of the Revised
Code modify, limit, and supersede the "Electronic Signatures in
Global and National Commerce Act," 114 Stat. 464, 15 U.S.C. 7001,
et seq., but do not modify, limit, or supersede section 101(c) of
that act, 15 U.S.C. 7001(c), or authorize electronic delivery of
any of the notices described in section 103(b) of that act, 15
U.S.C. 7003(b).
Sec. 3117.27. Sections 3117.11 to 3117.27 of the Revised
Code may be cited as the "Ohio collaborative family law act."
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