Collaborative Law
In 2001, when sections 6.603 and 153.0072 were added to titles 1 and 5 of the Family Code, Texas became the first state in the United States to pass statutes specifically authorizing collaborative law. In May 2011, the 82nd Texas Legislature passed the Collaborative Family Law Act (CFLA), which repealed sections 6.603 and 153.0072 and which was assigned to the new title 1–A of the Texas Family Code. It became effective September 1, 2011. The CFLA includes most of the provisions of former Code sections 6.603 and 153.0072 and adds greater detail to the process and procedures of this unique process of alternative dispute resolution, originally created in 1999 by Minnesota family lawyer Stuart G. Webb.
Pauline Tesler, one of the most respected leaders of the collaborative law movement, provided a definition of collaborative law in Collaborative Law: What It Is and Why Family Law Attorneys Need to Know About It, 13 Am. J. Fam. L. 215, 219 (1999):
Collaborative law consists of two clients and two attorneys working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues. Each party selects independent collaborative counsel. Each lawyer’s retainer agreement specifies that the lawyer is retained solely to assist the client in reaching a fair agreement and that under no circumstances will the lawyer represent the client if the matter goes to court. If the process fails to reach agreement and either party then wishes to have matters resolved in court, both collaborative attorneys are disqualified from further representation. They assist in the orderly transfer of the case to adversarial counsel. Experts are brought into the collaborative process as needed, but only as neutrals, jointly retained by both parties. . . . The process involves binding commitments to disclose voluntarily all relevant information, to proceed respectfully and in good faith, and to refrain from any threat of litigation during the collaborative process.
Family Code section 15.052 provides a series of definitions that clarify the provisions of the Act. A “collaborative family law communication” is a statement made by a party or nonparty participant, whether oral or in a record, or verbal or nonverbal, that is made to conduct, participate in, continue, or reconvene a collaborative family law process and occurs after the parties sign a collaborative family law participation agreement and before the collaborative family law process is concluded. Tex. Fam. Code § 15.052(1).
The “collaborative family law process” is a procedure intended to resolve a collaborative family law matter without court intervention in which parties sign a family law participation agreement and are represented by collaborative family law lawyers. Tex. Fam. Code § 15.052(4).
The Act makes it clear that collaborative law is a purely voluntary procedure. See Tex. Fam. Code §§ 15.102(f), 15.111(3)(b). A court may not order a party to participate in the process over that party’s objection. Tex. Fam. Code § 15.102(b).
A new “team” model of collaborative law has developed in Texas, involving mental health professionals who serve as communications coaches for the clients, assisting them in effectively communicating with each other during the collaborative process, and financial professionals who assist in gathering and analyzing financial information, provide financial education, and assist the parties in developing options for dividing their assets. The team approach can also include child specialists (also mental health professionals) who can act as ombudsman for the children of the marriage. Unlike the lawyers, the additional team members are all neutrals, retained to assist the process, not the individual clients.
COMMENT: Although the Act does not require a lawyer to obtain any special training in order to represent a client in a collaborative law matter, a family attorney should not handle a case collaboratively without attending at least one collaborative law training conducted by an experienced trainer. Both the Collaborative Law Institute of Texas, Inc. (CLI-TX), a nonprofit group, and the State Bar of Texas schedule periodic trainings and seminars throughout the state. Information about available training in Texas and throughout the United States, Canada, and worldwide can be found at the website of the International Academy of Collaborative Professionals, www.collaborativepractice.com, and at the CLI-TX website, https://collaborativedivorcetexas.com. The sites also provide links to other information relevant to collaborative lawyers.
At the beginning of a collaborative law case, the attorneys and parties enter into an agreement to participate in collaborative law. Family Code section 15.101 sets out the requirements for the participation agreement, which must be in writing and signed by the parties. The agreement must state the parties’ intent to resolve a collaborative family law matter through a collaborative family law process, describe the nature and scope of the collaborative family law matter, identify the collaborative lawyer who represents each party in the collaborative family law process, and contain a statement by each collaborative lawyer confirming the lawyer’s representation of a party in the collaborative family law process. Tex. Fam. Code § 15.101(a).
A collaborative family law participation agreement must further include provisions for suspending tribunal (court) intervention in the collaborative family law matter while the parties are using the collaborative family law process and, unless otherwise agreed in writing, jointly engaging any professionals, experts, or advisors serving in a neutral capacity. Tex. Fam. Code § 15.101(b).
To obtain the benefit of the collaborative law statute, the parties must expressly provide for “withdrawal of all counsel in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute.” In re Mabray, 355 S.W.3d 16, 26 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding [mand. denied]).
COMMENT: Collaborative law agreements may include provisions to exchange sworn inventories, enjoin certain behaviors during the collaborative process, determine whether jointly hired experts may or may not testify if the collaborative process breaks down, and allocate the cost of the collaborative process. The agreement may be modified by mutual agreement as the collaborative process progresses, but anticipating potential problems and clarifying the ground rules at the inception of the process will help collaborative lawyers avoid potential roadblocks to a smooth collaboration.
§ 15.4Beginning and Concluding Process
A collaborative family law process begins when the parties sign a collaborative family law participation agreement. Tex. Fam. Code § 15.102(a). It is concluded by resolution of the collaborative family law matter, as evidenced by a signed record; by resolution of part of the matter, as evidenced by a signed record, in which the parties agree that the remaining parts of the matter will not be resolved in the process; or by termination of the process in a prescribed manner. Tex. Fam. Code § 15.102(c).
The process can terminate under several different conditions: when a party gives notice to the other parties that the process has ended; when a party begins a proceeding (for example, prehearing or posthearing conferences, motions, or discovery) before the court without the agreement of all of the parties; or when, in a pending proceeding related to the matter, a party initiates a pleading, motion, or request for a conference without such agreement, initiates an order to show cause, requests that the case be put on the court’s active calendar, or takes a similar action requiring that notice be sent to the parties. Tex. Fam. Code § 15.102(d)(1), (d)(2).
The process also terminates if a collaborative lawyer is discharged or withdraws from further representation of a party and is not replaced within thirty days by a successor collaborative lawyer. Tex. Fam. Code § 15.102(d)(3), (g)(1), (g)(2). A collaborative lawyer must given prompt written notice to all other parties of his discharge or withdrawal. Tex. Fam. Code § 15.102(e).
A party may terminate the collaborative process with or without cause. Tex. Fam. Code § 15.102(f).
On the engagement of a successor collaborative lawyer, the parties must reaffirm the participation agreement and amend the agreement to identify the successor collaborative lawyer, who must confirm his representation of the party in the collaborative process. Tex. Fam. Code § 15.102(g)(2). The new agreement may provide additional methods of concluding the process agreed on by the parties.
§ 15.5Collaborative Law Cases on Different Track in Court
Parties have until thirty days before trial to notify the court that the parties are using collaborative law procedures to attempt to settle a dispute. For a period of two years after the date that the suit was filed, the court may not, until notified by a party that the collaborative law procedures did not result in a settlement, set a hearing or trial in the case, impose discovery deadlines, require compliance with scheduling orders, or dismiss the case. Tex. Fam. Code § 15.103(b).
Until settlement is reached or the collaborative process is terminated, the parties are required to file periodic status reports with the presiding court. The first such report is required not later than the 180th day after the date the written agreement to use the procedures was signed or, if the proceeding was filed by agreement after the collaborative law agreement was signed, after the date of filing. A second status report is required on or before the first anniversary of the date the written agreement to use the procedures was signed or, if the proceeding was filed by agreement after the collaborative law agreement was signed, of the date of filing, accompanied with a motion for continuance. Tex. Fam. Code § 15.103(c).
The court is required to grant the continuance if the status report indicates the desire of the parties to continue to use collaborative law procedures. Tex. Fam. Code § 15.103(d). The court shall provide parties notice and an opportunity to be heard before dismissing a proceeding based on delay or failure to prosecute in which a notice of collaborative family law process is filed. Tex. Fam. Code § 15.103(i).
COMMENT: There is no provision in the Code for sanctions if the parties fail to file the required reports. Although anecdotal evidence indicates that most collaborative law cases settle long before the second status report and request for continuance are due, the responsible practitioner would be wise to add the status report dates to his tickler system.
If the collaborative law procedures do not result in a settlement on or before the second anniversary of the date that the suit was filed, the court has the options of setting the suit for trial on the regular docket or dismissing the suit without prejudice. Tex. Fam. Code § 15.103(e).
One of the provisions that makes a case a collaborative one is the provision that a collaborative lawyer is disqualified, except as provided in Family Code section 15.106(d), from appearing before a tribunal to represent a party in an adversarial proceeding related to a collaborative family law matter, whether or not the collaborative lawyer is representing the party for a fee. Any lawyer in a law firm with which the collaborative lawyer is associated is also disqualified from appearing before a tribunal to represent a party in a proceeding related to that collaborative family law matter, except as provided in Code sections 15.106(d), 15.107, and 15.108. Tex. Fam. Code § 15.106(b), (c).
§ 15.9Exceptions to Disqualification
There are exceptions to the disqualification provision in the CFLA. A collaborative lawyer may represent a collaborative client in exigent circumstances in order to seek or defend an emergency order to protect the health, safety, welfare, or interest of a party or a family if a successor lawyer is not immediately available to represent that party. The lawyer may also represent a party to request a tribunal to approve an agreement resulting from the collaborative family law process. Tex. Fam. Code § 15.106(d). This exception does not apply after the party is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of that party or family. Tex. Fam. Code § 15.106(e).
Although the collaborative lawyer may be disqualified, Code sections 15.107 and 15.108 provide exceptions for other attorneys associated with the collaborative lawyer’s firm. Associated attorneys at legal aid organizations and law firms that represent clients on a pro bono basis are excepted if 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, the collaborative family law participation agreement authorizes that representation, and the collaborative lawyer is isolated from any participation in the collaborative family law matter or a matter related to the collaborative family law matter through procedures within the law firm that are reasonably calculated to isolate the collaborative lawyer from such participation. Tex. Fam. Code § 15.107. The same exception exists when the collaborative lawyer represents the state, a political division of the state, or an agency of the state. Tex. Fam. Code § 15.108(c).
§ 15.10Full Disclosure of Information
During the collaborative family law process, on 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. A party shall update promptly any previously disclosed information that has materially changed. A collaborative law agreement requiring the husband to disclose “all developments affecting . . . [his] income” reestablished a fiduciary duty on the part of the husband to update information, and he committed fraud for failing to do so. Rawls v. Rawls, No. 01-13-00568-CV, 2015 WL 5076283 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, no pet.) (mem. op.). The parties may, by agreement, define the scope of disclosure during the collaborative family law process. Tex. Fam. Code § 15.109.
§ 15.11Professional Responsibility Unchanged
The CFLA does not affect the professional responsibility obligations and standards applicable to a lawyer or any other licensed professional working in the process or the obligation of a person under other law to report abuse or neglect, abandonment, or exploitation of a child or adult. Tex. Fam. Code § 15.110.
Before a prospective party signs a collaborative family law participation agreement, a prospective collaborative lawyer must assess with the prospective party factors the lawyer reasonably believes relate to whether a collaborative family law process is appropriate for the prospective party’s matter and provide the prospective party with information that the lawyer reasonably believes is sufficient for the prospective party to make an informed decision about the material benefits and risks of a collaborative family law process as compared to the material benefits and risks of other reasonably available alternatives for resolving the proposed collaborative matter, including litigation, mediation, arbitration, or expert evaluation. Tex. Fam. Code § 15.111(1), (2).
Additionally, the lawyer must inform the prospective party that, after signing an agreement, if a party initiates a proceeding or seeks tribunal intervention in a pending proceeding related to the collaborative family law matter, the collaborative family law process terminates; that participation in a collaborative family law process is voluntary and any party has the right to terminate unilaterally a collaborative family law process with or without cause; and that the collaborative lawyer and any lawyer in a law firm with which the collaborative lawyer is associated may not appear before a tribunal to represent a party in an adversarial proceeding related to the collaborative family law matter, except as authorized by Code sections 15.106(d), 15.107, and 15.108. Tex. Fam. Code § 15.111(3); see discussion of the authorized exceptions at sections 15.8 and 15.9 above.
COMMENT: Ideally, all family attorneys, whether they practice collaborative law or not, should provide their clients with sufficient information about all the alternative approaches to reaching resolution of their case so they can be sufficiently informed to decide which approach makes the most sense to them. To lead clients blindly into the litigation alternative without informing them of the options available in reaching resolution seems irresponsible and dismissive of the client’s right to give informed consent to the form his representation should take. See ABA Model Rules of Prof’l Conduct 1.4(a)(1), (a)(2) (2009).
Before a prospective party signs a collaborative family law participation agreement in a collaborative family law matter in which another prospective party is a member of the prospective party’s family or household or with whom the prospective party has or has had a dating relationship, a prospective collaborative lawyer must make reasonable inquiry regarding whether the prospective party has a history of family violence with the other prospective party. Tex. Fam. Code § 15.112(b).
If the collaborative lawyer reasonably believes that the party the lawyer represents, or the prospective party with whom the collaborative lawyer consults, as applicable, has a history of family violence with another party or prospective party, the lawyer may not begin or continue a collaborative family law process unless the party or prospective party requests beginning or continuing a process and the collaborative lawyer or prospective collaborative lawyer determines with the party or prospective party what, if any, reasonable steps could be taken to address the concerns regarding family violence. Tex. Fam. Code § 15.112(c).
§ 15.14Confidentiality of Communications
A collaborative family law communication is confidential to the extent agreed to by the parties in a signed record or as otherwise provided by law. If the parties agree in the participation agreement or other signed record, the conduct and demeanor of the parties and nonparty participants, including their collaborative lawyers, are confidential. Additionally, if the parties agree in a signed record, communications related to the collaborative family law matter occurring before the signing of the collaborative family law participation agreement are confidential. Tex. Fam. Code § 15.113.
§ 15.15Privilege against Disclosure
Except as provided by Family Code section 15.115, a collaborative family law communication, whether made before or after the institution of a proceeding, is privileged and not subject to disclosure and may not be used as evidence against a party or nonparty participant in a proceeding. Tex. Fam. Code § 15.114(a). Any record of a collaborative family law communication is privileged, and neither the parties nor the nonparty participants may be required to testify in a proceeding related to or arising out of the collaborative family law matter or be subject to a process requiring disclosure of privileged information or data related to the collaborative matter. Tex. Fam. Code § 15.114(b). An oral communication or written material used in or made a part of a collaborative family law process is admissible or discoverable if it is admissible or discoverable independent of the collaborative family law process. Tex. Fam. Code § 15.114(c).
If these provisions regarding privilege conflict with other legal requirements for disclosure of communications, records, or materials, the issue of privilege may be presented to the court to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure. The presentation of the issue of privilege to the court does not constitute a termination of the collaborative family law process under Code section 15.102(d)(2)(B). Tex. Fam. Code § 15.114(d).
A party or nonparty participant may disclose privileged collaborative family law communications to a party’s successor counsel, subject to the terms of confidentiality in the collaborative family law participation agreement, and those disclosures remain privileged. Tex. Fam. Code § 15.114(e).
A person who makes a disclosure or representation about a collaborative family law communication that prejudices the rights of a party or nonparty participant in a proceeding may not assert a privilege under Code section 15.114. This restriction applies only to the extent necessary for the person prejudiced to respond to the disclosure or representation. Tex. Fam. Code § 15.114(f).
The privilege prescribed by Code section 15.114 (described in section 15.15 above) does not apply to a collaborative family law communication that is (1) in an agreement resulting from the collaborative family law process, evidenced in a record signed by all parties to the agreement; (2) subject to an express waiver of the privilege in a record or orally during a proceeding if the waiver is made by all parties and nonparty participants; (3) available to the public under chapter 552 of the Texas Government 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; (4) a threat or statement of a plan to inflict bodily injury or commit a crime of violence; or (5) a disclosure of a plan to commit or attempt to commit a crime or conceal an ongoing crime or ongoing criminal activity. Tex. Fam. Code § 15.115(a)(1)–(5).
The privilege also does not apply to disclosures in a report of suspected abuse or neglect of a child to an appropriate agency or in a proceeding regarding abuse or neglect of a child (Code section 15.115(a)(6)(A) allows for attorney-client privilege in child abuse cases subject to subchapter C of Code chapter 261) or in a report of abuse, neglect, or exploitation of an elderly or disabled person to an appropriate agency. Tex. Fam. Code § 15.115(a)(6).
The privilege also does not apply when the communication is sought or offered to prove or disprove (1) a claim or complaint of professional misconduct or malpractice arising from or related to a collaborative family law process; (2) an allegation that the settlement agreement was procured by fraud, duress, coercion, or other dishonest means or that terms of the settlement agreement are illegal; (3) the necessity and reasonableness of attorney’s fees and related expenses incurred during a collaborative family law process or to challenge or defend the enforceability of the collaborative family law settlement agreement; or (4) a claim against a third person who did not participate in the collaborative family law process. Tex. Fam. Code § 15.115(a)(7).
Only the part of the communication necessary for the application of the exception may be disclosed or admitted. Tex. Fam. Code § 15.115(b). The disclosure or admission of evidence excepted from the privilege does not make the evidence or any other collaborative family law communication discoverable or admissible for any other purpose. Tex. Fam. Code § 15.115(c).
§ 15.17Parties Entitled to Judgment
A collaborative family law settlement agreement is enforceable in the same manner as a written settlement agreement under section 154.071 of the Texas Civil Practice and Remedies Code. A party is entitled to judgment on a collaborative family law settlement agreement if the agreement provides in a prominently displayed statement that is bold-faced, capitalized, or underlined that the agreement is not subject to revocation and is signed by each party to the agreement and the collaborative lawyer of each party. Tex. Fam. Code § 15.105.
COMMENT: It would be unusual for an interim collaborative law agreement with such warnings to be filed with the court. The better practice is for an agreed decree to be prepared, signed, and proved up in an uncontested hearing. If such an agreement were filed and one of the parties had a change of heart, the collaborative attorneys could not represent either party if the other party wanted to enter a decree based on the collaborative law settlement agreement but would instead have to terminate the collaborative process, withdraw, and send their clients on to litigation counsel.
Some jurisdictions will permit the parties to file a joint petition for divorce. If this is the case, before filing, the parties should establish which name appears first in the caption because, in the event the collaborative process breaks down, many court clerks will designate the first named person as the petitioner and the second named person as the respondent.
The collaborative process requires the practitioner to make a radical paradigm shift in the way representation is viewed and conducted.
The process moves forward via carefully managed four-way settlement meetings, preceded by considerable groundwork between lawyer and client, and between lawyer and lawyer. The lawyer’s job is challenging: In addition to the usual identification, investigation, and development of issues and proposals for settlement, the lawyer must work with the client and the other lawyer to anticipate and manage conflict and to guide the negotiation process. The lawyer also must encourage the client to take a considered and broad view in setting goals and priorities and must teach the client how to use interest-based, rather than positional bargaining.
Pauline H. Tesler, Collaborative Law: What It Is and Why Family Law Attorneys Need to Know About It, 13 Am. J. Fam. L. 215, 219–20 (1999).
COMMENT: Because the process entails cooperation between lawyers rather than an arm’s-length, adversarial approach, some lawyers fear that collaborative law poses ethical problems. For others, it is just another form of alternative dispute resolution, offering an opportunity to avoid the sometimes emotionally taxing and often outrageously expensive traditional adversarial approach. Despite the fact that there has not been one recorded malpractice case or grievance filed against an attorney in a collaborative case in the United States, many attorneys agonize over what they perceive to be the ethical challenges of collaborative law. Some found relief when the American Bar Association found it to be ethical (ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 447 (2007)), and Texas gave the practice its tacit blessing when it passed the earlier collaborative law statutes. Passage of the CFLA should give additional comfort to those lawyers who have lingering doubts.
The practice of collaborative law is unique in that practice groups of unaffiliated lawyers have been formed. These groups pool their resources for mutual support, continuing education, peer evaluation, and marketing collaborative law and other individual services to the public. A number of Texas practice groups are listed at section 15.21 below. A listing of groups throughout the United States and Canada can also be found at the IACP website, www.collaborativepractice.com.
The following websites contain information relating to the topic of this chapter:
General:
Collaborative Law Institute of Texas, Inc. (§ 15.2)
https://collaborativedivorcetexas.com
Cutting Edge Law
www.cuttingedgelaw.com
International Academy of Collaborative Professionals (§ 15.2)
www.collaborativepractice.com
Renaissance Lawyer Society
www.renaissancelawyer.org
Texas BarCLE
www.texasbarcle.com
Texas Practice Groups:
Collaborative Divorce Collin County
https://collaborativedivorce-collincounty.com
Collaborative Divorce Denton County
https://collaborativedivorcedentoncounty.org
Collaborative Divorce Dallas
https://collaborativedivorcedallas.net
Collaborative Divorce Austin
www.collaborativedivorceaustin.com
Collaborative Divorce Houston
https://collaborativedivorcehouston.com
Collaborative Divorce San Antonio
https://collaborativedivorcesanantonio.com
Collaborative Divorce Texas
https://collaborativedivorcetexas.com