SB 440 - AS INTRODUCED
SENATE BILL 440
SPONSORS: Sen. Chandley, Dist 11; Sen. Carson, Dist 14; Rep. Mulligan, Graf. 12; Rep. B. Griffin, Hills. 6
This bill provides for resolution of legal issues, including divorce, parental rights and responsibilities, and child support, through a collaborative law process.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
Be it Enacted by the Senate and House of Representatives in General Court convened:
NEW HAMPSHIRE COLLABORATIVE LAW ACT
490-J:1 Short Title. This chapter may be cited as the New Hampshire collaborative law act.
490-J:2 Definitions. In this chapter:
I. “Collaborative law communication” means a statement, whether oral or in a document, that:
(a) Is made as part of a collaborative law process;
(b) Occurs after the parties sign a collaborative law participation agreement and before the collaborative law process is concluded; and
(c) Is not otherwise privileged pursuant to the attorney client relationship.
II. “Collaborative law participation agreement” means an agreement by persons to participate in a collaborative law process.
III. “Collaborative law process” means a procedure intended to resolve a collaborative matter without intervention by a court in which persons:
(a) Sign a collaborative law participation agreement; and
(b) Are represented by collaborative lawyers.
IV. “Collaborative lawyer” means a lawyer who represents a party in a collaborative law process.
V. “Collaborative matter” means an issue for resolution which is described in a collaborative law participation agreement and arises under the law of this state, including, but not limited to:
(a) Marriage, divorce, annulment, legal separation, and property distribution;
(b) Parental rights and responsibilities;
(c) Grandparent rights;
(d) Alimony, maintenance, and child support;
(f) Premarital and post-marital agreements; and
(g) Any modifications of any orders arising out of the matters set forth in subparagraphs (a)-(f).
VI. “Court” means a body acting in an adjudicative capacity which has jurisdiction to render a decision affecting a party’s interests in a matter.
VII. “Document” 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.
VIII. “Law firm” means lawyers who practice law together in a partnership, professional corporation, sole proprietorship, limited liability company, association or legal services organization.
IX. “Neutral participant” means a person, other than a party and a party’s collaborative lawyer, that participates in a collaborative law process.
X. “Party” means a person that signs a collaborative law participation agreement and whose consent is necessary to resolve a collaborative matter.
XI. “Proceeding” means a judicial or other adjudicative process.
XII. “Prospective party” means a person who discusses with a prospective collaborative lawyer the possibility of signing a collaborative law participation agreement.
XIII. “Related to a collaborative matter” means involving the same parties, transaction or occurrence, nucleus of operative fact, dispute, claim, or issue as the collaborative matter.
XIV. “Sign” means with present intent to authenticate or adopt a document by electronic or non-electronic signature.
490-J:3 Applicability. This chapter applies to a collaborative law participation agreement that meets the requirements of RSA 490-J:4 signed on or after the effective date of the chapter.
490-J:4 Collaborative Law Participation Agreement; Requirements.
I. A collaborative law participation agreement shall:
(a) Be in writing;
(b) Be signed by the parties;
(c) State the parties’ intention to resolve a collaborative matter through a collaborative law process under this chapter;
(d) Describe the nature and scope of the matter;
(e) Contain a statement by each collaborative lawyer confirming the lawyer’s representation of a party in the collaborative law process; and
(f) Disqualify the collaborative lawyer from representing a party in a case filed with a court involving one or more of the same parties in the same or a related matter, except for the filing needed to seek the court’s approval of an agreement reached in the collaborative case or in pending cases while stayed pursuant to RSA 490-J:6, I.
II. Parties may agree to include in a collaborative law participation agreement additional provisions not inconsistent with this chapter or current law.
490-J:5 Beginning and Concluding Collaborative Law Process.
I. A collaborative law process begins when the parties sign a collaborative law participation agreement.
II. A court shall not order a party to participate in a collaborative law process over that party’s objection.
III. A collaborative law process is concluded by a:
(a) Resolution of a collaborative matter as evidenced by a signed agreement;
(b) Resolution of a part of the collaborative matter, evidenced by a signed agreement, in which the parties agree that the remaining parts of the matter will not be resolved in the process; or
(c) Termination of the process.
IV. A collaborative law process terminates:
(a) When a party gives written notice to other parties that the process is ended.
(b) Except as otherwise provided by paragraph VII, when a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party.
(c) When a party:
(1) Files a petition or other pleading related to a collaborative matter without the agreement of all parties; or
(2) In a pending proceeding related to the matter:
(A) Initiates a pleading, motion, order to show cause, or request for a conference with the court; or
(B) Requests that the proceeding be put on the court’s active docket; or
(C) The matter is no longer stayed.
V. A party’s collaborative lawyer shall give prompt written notice to all other parties if the lawyer has been discharged or withdraws as counsel.
VI. A party may terminate a collaborative law process with or without cause.
VII. Notwithstanding the discharge or withdrawal of a collaborative lawyer, a collaborative law process continues, if within 30 days or within a time agreed to by the team in writing:
(a) The unrepresented party engages a successor collaborative lawyer; and
(b) The parties consent in writing to continue the process by reaffirming the collaborative law participation agreement, and the successor collaborative lawyer confirms the lawyer’s representation of a party in the collaborative process.
VIII. A collaborative law process shall not conclude if the parties jointly request the court to approve a settlement of the collaborative matter or any part thereof.
IX. A collaborative law participation agreement may provide additional methods of concluding a collaborative law process.
490-J:6 Cases Already Filed in Court.
I. Parties who have already initiated a proceeding by filing a petition with the court may jointly request the court to stay future action in the matter so the parties may engage in a collaborative process for resolution of the matter. Before signing a participation agreement, the parties shall file an assented to motion to stay the proceedings with the court. The case shall not proceed with the collaborative process unless the stay is granted by the court. An extension of the stay may be requested of the court by written agreement to continue the collaborative process.
II. Either party can initiate a filing with the court to remove the stay and proceed with a litigated solution in the matter at any time.
III. Any unilateral filing with the court terminates the collaborative case. The case shall be returned to the active docket.
IV. A court shall provide parties notice and an opportunity to be heard before dismissing a case in which a notice of collaborative process is filed.
490-J:7 Emergency Order. During a collaborative law process, a court may issue emergency orders to protect the health, safety, welfare, or interest of a party; however, filing for such an order terminates the pending collaborative law process. Nothing in this section prohibits parties from exploring a return to the collaborative process after the issues that gave rise to the emergency order have been resolved and process outlined in RSA 490-J:13, III have been followed.
490-J:8 Approval of Agreement by Court.
I. The terms of a collaborative law participation agreement shall be considered a binding contract and shall be enforceable by the trial court.
II. Any agreements signed by the parties during the collaborative process are binding upon the parties in the same manner as they are in other family law proceedings. The trial court fully retains all rights and duties to ensure that the agreements reached are fair and reasonable to all before being approved by the court.
III. Agreements reached during the collaborative process which are not signed by all parties shall not be binding and shall be considered part of settlement discussions only.
490-J:9 Disqualification of Collaborative Lawyer and Lawyers in Associated Law Firm.
I. Except as otherwise provided in paragraph III, a collaborative lawyer is disqualified from appearing before a court to represent a party in a proceeding related to a collaborative matter, including related matters filed by third parties.
II. Except as otherwise provided in paragraph III, RSA 490-J:10, and RSA 490-J:11, 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 a collaborative matter if the collaborative lawyer is disqualified from doing so under paragraph I.
III. 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 or defend an emergency order to protect the health, safety, welfare, or interest of a party, a minor child, family or household member as defined in RSA 173-B:1, X, if a successor lawyer is not immediately available to represent that party and only until the person is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of the person.
490-J:10 Disclosure of Information. During the collaborative law process, on the request of another party, a party shall make timely, full, candid, and informal disclosure of information related to a collaborative matter without formal discovery. A party also shall update promptly previously disclosed information that has materially changed. The parties may define the scope of disclosure during the collaborative law process.
490-J:11 Standards of Professional Responsibility and Mandatory Reporting Not Affected. This chapter does not affect:
I. The professional responsibility obligations and standards applicable to a lawyer or other licensed professional; or
II. The obligation of a person to report abuse or neglect, abandonment, or exploitation of an adult or child under New Hampshire law.
490-J:12 Appropriateness of Collaborative Law Process. Before a prospective party signs a collaborative law participation agreement, a prospective collaborative lawyer shall:
I. Assess with the prospective party factors the lawyer reasonably believes relate to whether a collaborative law process is appropriate for the prospective party’s matter;
II. Provide the prospective party with information that the lawyer reasonably believes is sufficient for the party to make an informed decision about the material benefits and risks of a collaborative law process as compared to the material benefits and risks of other reasonably available alternatives for resolving the proposed collaborative matter, such as litigation, mediation, arbitration, or neutral evaluation; and
III. Advise the prospective party that:
(a) After signing an agreement if a party initiates a proceeding or seeks court intervention in a pending proceeding related to the collaborative matter, the collaborative law process terminates;
(b) Participation in a collaborative law process is voluntary and any party has the right to terminate unilaterally a collaborative law process with or without cause; and
(c) The collaborative lawyer and any lawyer in a law firm with which the collaborative lawyer is associated may not appear before a court to represent a party in a proceeding related to the collaborative matter, except as authorized by RSA 490-J:9, III.
490-J:13 Domestic Violence.
I. Before a prospective party signs a collaborative law participation agreement, a prospective collaborative lawyer shall make reasonable inquiry whether the prospective party has a history of a coercive or violent relationship with another prospective party.
II. Throughout the collaborative law process, a collaborative lawyer reasonably and continuously shall assess whether the party the collaborative lawyer represents has a history of a coercive or violent relationship with another party.
III. If a collaborative lawyer reasonably believes that the party the lawyer represents or the prospective party who consults the lawyer has a history of a coercive or violent relationship with another party or prospective party, the lawyer may not begin or continue the collaborative law process unless both parties, after individual consultation with their attorneys, represent to their individual attorney that he/she has no current concern for his/her safety or coercion and both wish to proceed with the collaborative process.
490-J:14 Confidentiality of Collaborative Law Communication. A collaborative law communication is confidential except as agreed by the parties in a signed document, or under the circumstances set forth in RSA 490-J:15, IV.
490-J:15 Privilege Against Disclosure for Collaborative Law Communication.
I. Except as set forth in this section, a collaborative law communication is privileged, is not subject to discovery, and is not admissible into evidence. Accordingly, a party or a party’s lawyer or a neutral participant may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication.
II. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because of its disclosure or use in a collaborative law process.
III. Waiver of Privilege.
(a) The privilege may be waived wholly or in part in a document or orally during a proceeding if it is expressly waived by all parties and, in the case of the privilege of a neutral participant, it is also expressly waived by the neutral participant.
(b) A party who discloses a collaborative law communication for which the privilege has not been waived under subparagraph (a) shall be deemed to have waived the privilege, but only to the extent necessary to permit any other party to respond to the unauthorized disclosure.
IV. There is no privilege under this chapter for a collaborative law communication that is:
(a) A threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(b) In an agreement resulting from the collaborative law process, evidenced by a document signed by all parties to the agreement;
(c) Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or related to a collaborative law process; or
(d) Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child or adult.
V. There is no privilege under this chapter if a court finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting the privilege and the collaborative law communication is sought or offered in:
(a) A court proceeding involving a felony; or
(b) A proceeding seeking rescission or clarification of an agreement arising out of the collaborative law process or in which a defense to avoid liability on the contract is asserted.
VI. If a collaborative law communication is subject to an exception under paragraph IV or V, only the part of the communication necessary for the application of the exception may be disclosed or admitted.
VII. Disclosure or admission of evidence excepted from the privilege under paragraph IV or V does not make the evidence or any other collaborative law communication discoverable or admissible for any other purpose.
490-J:16 Authority of Court in Case of Noncompliance. Notwithstanding a failure to comply with RSA 490-J:4, RSA 490-J:12, or RSA 490-J:13, a court may enforce an agreement, apply the disqualification provisions of RSA 490-J:9, or apply a privilege under RSA 490-J:15 when the court concludes that the parties intended to enter into a collaborative law participation agreement and to participate in a collaborative law process. Such a conclusion shall be based upon the following findings:
I. The parties signed a document indicating an intent to enter into a collaborative law participation agreement;
II. The parties reasonably believed they were participating in a collaborative law process; and
III. The interests of justice require finding that the parties were participating in collaborative law process.
|Jan. 21, 2020||Senate||Hearing|
|Jan. 30, 2020||Senate||Floor Vote|
|March 18, 2020||House||Hearing|
|Jan. 8, 2020||To Be Introduced 01/08/2020 and Referred to Judiciary; SJ 1|
|Jan. 21, 2020||Hearing: 01/21/2020, Room 100, SH, 09:30 am; SC 2|
|Jan. 30, 2020||Committee Report: Ought to Pass, 01/30/2020; Vote 5-0; CC; SC 4|
|Jan. 30, 2020||Ought to Pass: MA, VV; OT3rdg; 01/30/2020; SJ 2|
|Jan. 9, 2020||Introduced 01/09/2020 and referred to Judiciary HJ 2 P. 59|
|March 18, 2020||==CANCELLED== Public Hearing: 03/18/2020 11:00 am LOB 208|