The Uniform Collaborative Law Act (UCLA or the Act) is a model act promulgated by the Uniform Law Commission in 2010. The Act defines the collaborative process and sets forth guidelines for how the process is conducted. Further, the Act cloaks communications made during the process with evidentiary privilege.
The guidelines defined in the act include the most important portions of the process. For instance, the UCLA requires the use of a participation agreement, which must include a disqualification clause for most circumstances. The Act also requires client screening to ensure that collaborative law is an appropriate process.
The Uniform Law Commission created the UCLA in a manner that allows states to adopt the act either as statute, court rules, or a combination of both. The reasons for this flexible approach is because some jurisdictions see the UCLA more like an evidentiary privilege to be enacted by a legislature, while other jurisdictions see the UCLA more like rules governing the profession to be promulgated by the courts.
Currently, twenty-three jurisdictions (22 states and the District of Columbia) have enacted the UCLA. The first jurisdiction to adopt the UCLA was Utah in 2010, and additional jurisdiction have adopted the UCLA each year since. The steady list of adoptions, including three in 2021, suggests that the law is meeting the needs of the states. A below chart is a list of adoptions (the UCLA has been introduced for adoption in Missouri in 2022):
| State |
Adoption Year |
Form of Adoption |
Citation |
Notes |
Colorado |
2021 |
Statute |
Colo. Rev. Stat. §13-24-101 |
Limited to family practice |
New Hampshire |
2021 |
Statute |
N.H. Rev. Stat. Ann. § 490-J:1 |
|
Virginia |
2021 |
Statute |
Va. Code Ann. § 20-168 |
Limited to family practice |
North Carolina |
2020 |
Statute |
N.C. Gen. Stat. § 1-641 |
|
Tennessee |
2019 |
Rule |
Tenn. Sup. Ct. R., Rule 53 |
Limited to family practice |
Pennsylvania |
2018 |
Statute |
42 Pa. Cons. Stat. Ann. §7401 |
Limited to family practice, trusts and estate practice, and matters arising under corporate law |
Illinois |
2017 |
Statute |
Ill. Comp. Stat. 90/5 |
Limited to family practice |
New Mexico |
2017 |
Rule |
N.M.R.A., Rule 1-128.12 |
Limited to family practice |
Florida |
2016 |
Statute |
Fla. Stat. § 61.55 |
Limited to family practice |
North Dakota |
2016 |
Rule |
N.D. Rule of Ct. 8.10 |
Limited to family practice |
Arizona |
2015 |
Rule |
Ariz. R. Fam. L. Proc., Rule 67.1 |
Limited to family practice |
Montana |
2015 |
Statute |
Mont. Code. Ann. § 25-40-101 |
|
Maryland |
2014 |
Statute |
Md. Code Ann., Cts. & Jud. Proc. § 3-2001 |
|
Michigan |
2014 |
Statute |
Mich. Comp. Laws § 691.1331 |
Limited to family practice |
New Jersey |
2014 |
Statute |
N.J. Stat. Ann. § 2A:23D-1 |
Limited to family practice |
Alabama |
2013 |
Statute and Rules |
Ala. Code § 6-6-26 & Ala. Rules of Priv. in Collaborative Practice |
Limited to family practice |
Ohio |
2013 |
Statute |
Ohio Rev. Code § 3105.41 |
Limited to family practice |
Washington |
2013 |
Statute |
Wash. Stat. § 7.77.101 |
|
District of Columbia |
2012 |
Statute |
D.C. Code § 16-4001 |
Limited to family practice |
Hawaii |
2012 |
Statute |
Haw. Rev. Stat. § 658G-1 |
|
Nevada |
2011 |
Statute |
Nev. Rev. Stat. Ann § 38.400 |
|
Texas |
2011 |
Statute |
Tex. Family Code Ann. § 15.052 |
Limited to family practice |
Utah |
2010 |
Statute |
Utah Code Ann. § 78B-19-101 |
Based on the adoptions to date, eighteen jurisdictions adopted the UCLA as a statute via its legislature, four adopted the law as court rules, and one jurisdiction adopted both. The drafters were aware that some jurisdictions would view the law as one regulating attorney conduct and, thus, be adopted as a rule, while other jurisdictions would view the rule as primarily involving privilege, and thus be best adopted as a statute. The UCLA drafters leave all options open to the adopting jurisdictions. Nine jurisdictions allow Collaborative Practice in non-family related areas.
In 2011, the Uniform Law Commission proposed that the ABA House of Delegates adopt the UCLA. Unfortunately, the Act ran into unforeseen opposition at the House, and it was not adopted at the time.
The ABA Section of Dispute Resolution is currently working with the Uniform Law Commission to explore reintroducing the Act before the House of Delegates, likely at the ABA Mid-Year Meeting in February of 2024.
Collaborative law is an ethical form of limited scope representation, and the UCLA’s provisions ensure conformity to best practices. The UCLA does not affect any of the lawyer’s duties under the Rules of Professional Conduct. Instead, the UCLA clarifies how some of those rules relate to practice, particularly as it relates to the boundaries of the limited scope arrangement, the participation agreement, and post-withdrawal conflicts of interest.
In 2007, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 07-447, the ABA stated that collaborative law represents “a permissible limited scope representation.” The Opinion specifically rejected the notion that “collaborative law practice sets up a non-waivable conflict” of interest. In addition, between the years of 1997 and 2012, eleven jurisdictions issued ethics opinions approving the collaborative process, so long as certain conditions are met, such as ensuring informed consent (which is embedded in the UCLA). Colorado remains the only jurisdiction with an ethics opinion critical of collaborative law as an impermissible conflict of interest; however, Colorado adopted the UCLA in 2021, permitting the practice.
The state ethics opinions largely arise from jurisdictions that also enacted the UCLA. However, four additional jurisdictions (Minnesota, Kentucky, Missouri, and South Carolina) also permit the practice of collaborative law by virtue of an ethics opinion. In other words, twenty-seven jurisdictions explicitly permit collaborative practice under state law, state ethical guidance, or both.
Given that no jurisdictions have addressed the ethical questions regarding collaborative law in a decade, the general consensus appears to be that the practice is ethical, provided the lawyers meet their other ethical obligations under the Rules. Similarly, lawyers are not being disciplined for engaging in collaborative law while the number of collaborative lawyers continues to expand. These facts show the acceptance of collaborative law as a permitted, ethical practice.
Collaborative Practice as a viable dispute resolution process is here to stay. This process provides consumers with a structured approach to handling their conflicts that maintains their confidentiality, allows them to exert more control over their legal process, and complies with the ethical requirements of the practice of law.
