Rule 53 – Collaborative Family Law - Articles

All Content


Posted by: Irwin Kuhn on Aug 26, 2019

Journal Issue Date: Sep 2019

Journal Name: Vol 55 No 9

The Tennessee Supreme Court’s Newest Rule

Collaborative Family Law is an alternative process for achieving agreements to dissolve marriages, developing parenting plans, and resolving other family law issues. Its most distinctive features relate to the role of attorneys and the place of discovery.

On April 1, 2019, the Tennessee Supreme Court adopted its newest rule, Rule 53 – Collaborative Family Law. The Rule gives definition to collaborative practice and guidelines for practitioners.


Collaborative lawyers are hired for the limited purpose of assisting clients in their efforts to reach mutually acceptable and durable agreement with their spouse or partner. If resort to courts for resolution of contested issues is required, collaborative attorneys must withdraw, and litigation attorneys replace them. Thus, there is a premium on settlement, not only the parties, but also the attorneys. Attorneys in the collaborative environment are more like transactional lawyers; their focus is on, and their only mark of success is getting a deal done within the bounds of the law.
Formal discovery is replaced by automatic, complete and candid disclosure of relevant information — a process collaborative lawyers find more efficient than responding to form interrogatories.

The History Behind Rule 53

Rule 53, based on the Uniform Law Commission’s Uniform Collaborative Law Rule/Act, was proposed by the Tennessee Bar Association after lengthy study.

In early 2014, then-TBA President Cindy Wyrick appointed an ad hoc subcommittee on Collaborative Law to serve jointly with the Sections on Family Law and Dispute Resolution. Members of the subcommittee were Jeff Levy, Nashville; Cathy Allshouse, Chattanooga, who was then immediate past Family Law Section chair; Linda Seeley, Memphis; Ann Barker, Knoxville; former Judge Marietta Shipley, Nashville; Jackie Kittrell, Knoxville; then DR Section chair Cindy Pensoneau, Memphis; Barry Gold, Chattanooga; Helen Rogers, Nashville; then Family Law Section Chair Amy Amundson, Memphis; Grant Glassford, Brentwood; and myself.

In December 2014, after numerous meetings, the subcommittee voted to recommend adoption of a proposed amendment to Tennessee Supreme Court Rule 31 to govern the practice of Collaborative Family Law. The Rule 31 Amendment was approved for recommendation to the court by the TBA House of Delegates and the Board of Governors on Jan. 22 and 23, 2016, respectively.

Before the rule was formally proposed to the court, the Tennessee Alternative Dispute Resolution Commission heard a presentation about the proposed rule from TBA representatives and referred the proposal to a subcommittee chaired by ADR Commissioner Larry Bridgesmith. The subcommittee recommended that the TBA consider proposing the rule as a free-standing court rule rather than as an amendment to Rule 31. Bridgesmith made the point that collaborative family law is by definition voluntary and never court ordered. Rule 31, on the other hand focuses on court annexed alternative dispute resolution. Bridgesmith and the ADR Commission’s point was persuasive; the TBA petitioned the court to adopt the UCLR/A as a separate rule on June 13, 2017.1

The court asked for comments, as usual, and received almost unanimously positive comments on the proposed rule including those from the Tennessee Board of Professional Responsibility, the Nashville Bar Association, the Knoxville Bar Association, and numerous Tennessee attorneys practicing family law.2 The court asked the TBA to respond to comments, which it did on Feb. 9, 2018.3

The response acknowledged the positive feedback from the organized bar and individual attorneys but focused on suggestions by the Nashville Bar Association and some individuals. Although it was very supportive of the collaborative rule, the NBA suggested that the court consider a minimum training requirement for collaborative practitioners, and also that the mandatory withdrawal provision for collaborative lawyers be strengthened.

The TBA replied that it had considered a training requirement as part of the rule but rejected it. It was accepted that “training by those who would practice collaborative family law would be beneficial and that training is likely to develop more skilled practitioners.” However, the TBA saw value in adopting a uniform rule and stated “… none of the 18 jurisdictions that have to date adopted the UCLR/A have established a training requirement.”

The TBA continued, “The TBA sent the rule to the court without a training requirement with the understanding that attorneys practicing collaborative family law will be bound by Rule 1.1 of the Rules of Professional Conduct, which provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

The TBA continued, “Consideration should be given to the comments to Rule 1.1, including Comment [2]:

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence, and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

As a matter of practice, most collaborative attorneys become members of organizations of collaborative professionals. One such organization is the Middle Tennessee Collaborative Alliance (MTCA), a group of collaboratively trained collaborative lawyers, financial professionals and collaborative facilitators. It adopted as a requirement for admission to the group, the training standards set by the International Academy of Collaborative Practitioners (IACP). The IACP requires, members to complete a two-day 14-hour basic training and complete either a 40-hour mediation training or 30-hour interest-based negotiation training.4

Some on the TBA Collaborative Subcommittee, including this author, initially argued for a training requirement in the collaborative rule similar to that adopted by the MTCA. Eventually though, the importance of adopting a uniform rule and the roadblocks that administering a training requirement would pose persuaded the TBA to refrain from proposing a training requirement. Upon deeper reflection, this author came to agree with the position. Memphis attorney Lucian Pera, a former president of the TBA, who was actively involved in the discussion of the rule proposal, recently summarized his thoughts, with the understanding that here he speaks for himself and not the TBA: “After all, our regulations let any licensed lawyer practice the most sophisticated forms of law — tax law, ERISA law, probate law — and use the most sophisticated tools, even if that would, frankly, be stupid for those of us who aren’t experienced or trained.”

Regarding the NBA suggestion that the court “consider the addition of language emphasizing that the mandatory withdrawal provision contained in the collaborative family law participation agreement may not be contractually waived by the parties and their counsel if the collaborative family law process is not successful.” The TBA replied that mandatory withdrawal is required by Sections 4(b)(3) and 4(c), but it would not object if the court felt further clarification were needed. The final rule does not add any language to the uniform rule.

Following the close of the comment period and the reply period, the court asked the TBA to appear on Oct. 4, 2018, and address “1) the general necessity of the proposed rule; 2) the appropriate regulation of compliance with the rule; and 3) the necessity of a training requirement, and if imposed, the administration of such a requirement.”5 From the outset, justices expressed approval of the collaborative process for family law, but questioning indicated that members were wrestling with these three areas of focus.

The TBA argued that it was important for Tennessee to join the other 18 states and District of Columbia in part as a matter of consumer protection. As more divorcing couples seek collaborative divorce as an alternative to traditional litigation, it is imperative that there be a definition to what constitutes a collaborative approach. The rule gives that definition and is more fully discussed below. At the same time, the rule gives practitioners and clients certain protections and guidance to trial courts about handling collaborative cases.

The rule would be enforced in the same manner as other court rules. Trial and appellate courts would enforce the UCLR/A through usual mechanisms such as motions. For example, if an attorney who previously represented a client in the collaborative setting attempted to represent the client in a subsequent adversarial proceeding, their withdrawal would be demanded by the opposing party, or on the motion of the court, and the Supreme Court rule would be enforced. In situations involving ethical breaches related to the rule, for example, competence, the rule could be enforced by the Board of Professional Responsibility.

During oral argument before the court, it seemed the concern with enforcement was part of the inquiry about a training requirement, then a new mechanism such as the Alternative Dispute Resolution Commission would be required.
The TBA argued that there would be no need to establish a new ADR Commission or to add enforcement of the UCLR/A to the Commission’s mandate.

The most division on the court was detected on the issue of whether to require training of collaborative practitioners. Ultimately, the court adopted the collaborative rule as it now appears, without a training requirement.

Provisions of Rule 536

Elsewhere in this edition Ben Russ and Marlene Eskind Moses thoroughly describe how a typical full-team collaborative case differs from a traditionally litigated family law case (see page 23). They illustrate steps often used by experienced practitioners using a team of professionals in the process. While there are roadmaps, there are many routes that can be taken to get from departure to arrival at a mutually satisfactory agreement. What route is taken depends on the complexity of each case. Rule 53 sets forth the rules of the road.

Rule 53, Section 1 Introduction is a definition of the practice of collaborative family law, and it might be said that the remainder of the rule is commentary. In Section 1 we find out that collaborative law is:

  • Voluntary.
  • Contractually based.
  • An alternative dispute resolution process.
  • Clients are always represented by lawyers.
  • The lawyers are retained for the limited purpose of acting as advocates and counselors during the negotiation process.
  • There is, by definition, always an agreement between the parties to refrain from judicial resolution of a dispute during the collaborative process.

 The “collaborative family law process” is defined in Section 2 as one where courts are only involved to review and approve proposed marital dissolution agreements, permanent parenting plans, or other settlement documents. Again, the rule defines the collaborative process of one in which parties:

  1. sign a collaborative law participation agreement; and  
  2. are represented by collaborative lawyers.

The Participation Agreement

A participation agreement is defined at Section 4. A participation agreement is a contract that may include any agreement the parties wish about the collaborative process as long as it does not conflict with the rule.7 But, most important to the collaborative process, the participation agreement required by Section 4, must include a provision that the parties will not go to court to resolve any issues that arise while the parties are using the collaborative process.8 This is the “withdrawal provision.” It is at the heart of the collaborative process and intended to assure that the parties and counsel are focused on the transaction of entering an agreement rather than preparing for a trial where each side may be trying to make the other look as bad as possible.

If the parties cannot reach an agreement to settle their matter, the attorneys must withdraw. It is not optional for the parties and their lawyers to waive the withdrawal provision; Rule 53 states that withdrawal is mandatory “if one or both of the parties chooses to terminate the collaborative process and in fact moves the matter into litigation.”9

In addition to the mandatory attorney withdrawal provision, the participation agreement anticipates that neutral professionals, experts and advisors may be jointly hired.10 In practice, this usually, but not always, means that all advisors must be neutral. In some cases, a party may wish to consult with a financial advisor whom they have used in the past or plan to use after the divorce. However, the participation agreement often will state that non-neutral advisors will be hired only with the knowledge and consent of both parties. Where one side does use their own advisor with the consent of the other party, care should be taken to maintain the confidentiality of communication.

The Participation Agreement is also a vehicle to inform clients, and remind attorneys, of other provisions of Rule 53 that may become helpful. For example, a provision may be added that entering the collaborative process does not preclude the use of other forms of alternative dispute resolution that do not require court intervention, such as mediation.11

Section 5 makes clear that a collaborative case is voluntary, and parties cannot be ordered by a court to participate in the collaborative process,12 and states that “[a] collaborative family law process begins when the parties sign a collaborative family law participation agreement.13

A collaborative case may end when one party gives notice to the other that they are withdrawing from the process or, consistent with the intent that collaborative matters by definition not involve a court in an adversarial proceeding, Section 5(d) provides that a collaborative process ends when one party files contested matters with the court. Of course, a collaborative matter may also end when a court approves a settlement and enters a final decree.

Often a collaborative participation agreement will contain a provision requiring notice of intent to withdraw from the process and a cooling off period before filing any court proceeding that would affect the termination of the collaborative proceeding. The cooling off period is intended to avoid surprise and prejudice to the nonterminating party and may be used to support a request for a postponement of any hearing scheduled by the terminating party. The cooling off period also gives the terminating party time to reflect on the decision and consult with litigation counsel. Certainly, the opportunity to consider the time and expense involved in beginning anew in the litigation process may encourage a rekindled commitment to the collaborative process.

Rule 53’s Section 6 provides that when there is a case related to the collaborative matter on file with a court, notice will be given of the collaborative participation agreement and that notice will operate as an application for a stay of proceedings. The necessity of a stay is important in venues where cases are automatically set for trial on the court’s own motion or where cases may be dismissed after a period of apparent lack of activity.

Section 7 provides that nothing “in a collaborative participation agreement will prevent a court from issuing emergency orders to protect the health, safety, welfare, or interest of a party, members of a family or household.”14
A pivotal and innovative provision of collaborative practice is reflected in Rule 53 Section 12, Disclosure of Information. The discovery section, states:

 a.    Except as otherwise provided by law, during the collaborative family law process a party shall make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery. A party shall also update promptly any previously disclosed information that has materially changed and/or which becomes available.
 b.    The parties may define the scope of the disclosure under Subsection (a) during the collaborative family law process.

Of course, this is a profound departure from the usual practice of using form interrogatories and requests for production of documents or other discovery devices. Seasoned attorneys know what information constitutes a full and candid disclosure of information and therefore, what they need to disclose; you provide what information you would want to know if you were on the other side in order to make informed decisions. If you do not have information you need, or there are gaps in what is received, you ask for it. In practice, a neutral financial professional such as a CPA, financial planner or a business valuator is often a central member of the collaborative team and is in charge of the information-gathering process.

Some may question whether an added professional, such as a financial neutral, makes the collaborative process more expensive and out of reach of average parties. But the financial neutral’s work replaces much of the duplication of effort clients together pay for when their attorney and their staff gather and review documents before they are produced and which are again reviewed any analyzed by the attorney and staff representing their spouse. Instead, one experienced neutral professional does the work and produces analysis for both sides.

Ronald Reagan’s “trust but verify” adage is alive and well in Section 12(c), which is intended to insure the fullness and candor of disclosure of information. It provides:

The parties shall each sign, under oath, a joint sworn complete statement of assets and liabilities, … verifying that they have fully disclosed all marital and separate property … . A jointly retained financial neutral may prepare the sworn statement. The parties shall make available documents to verify their sworn statements.

Sections 16 through 19 are critically important to the collaborative process although the discussion here is limited. Those sections set out the scope of confidentiality and privilege of collaborative communication. Prior to adoption of the rule, participants relied on contractual provisions in collaborative participation agreements and in agreements with nonparty neutrals. Rule 53 formalizes the protection of collaborative communication.15

Section 14 of Rule 53 obliges a collaborative attorney to take steps to assess the appropriateness of the collaborative process to a particular case and to give information to the prospective collaborative client “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.”16

Information that should be relayed includes 1) that entering the collaborative process precludes using court intervention (except for seeking approval of agreements) and if court intervention is sought, the collaborative process ends; 2) that entering and staying in the collaborative process is voluntary; 3) that, except to get approval of collaborative agreements, the collaborative lawyer will not appear in court unless certain special situations set out in the rule are present.17

In addition to the inquiry required by Section 14, Section 15(b) requires a prospective collaborative lawyer to “make reasonable inquiry regarding whether the prospective party has a history of family violence with the other prospective party.” If the lawyer believes there may be a history of family violence the lawyer may not begin or continue in the collaborative matter unless the victim requests to begin or continue the process and the collaborative lawyer believes reasonable steps can be taken “to address the concerns regarding family violence.”18

Conclusion

By adopting Rule 53, the Supreme Court acted to protect potential consumers of legal services by giving definition to what can and cannot be called a collaborative matter and by requiring collaborative attorneys to give potential clients information about the potential benefits and risks of the process. Equally important, it gave guidance to collaborative practitioners.

At the same time, the court gave its official imprimatur to an innovative and effective means of dispute resolution. The careers of many family lawyers span the period of time from mediation being introduced until the introduction of collaborative family law and adoption of Rule 53. It seems like yesterday that some family lawyers and judges opined that if parties could mediate their cases, they would not be getting divorced.

Certainly, minds have changed. Like mediation, collaborative family law practice offers an opportunity for couples to avoid increased animosity that often goes hand in glove with divorce litigation. Is it perfect? Attorneys whose only experience with collaborative cases is with cases that do not work out know it is not perfect. Is it more successful than the litigation process? Anecdotally, I believe so; the great majority of collaborative cases taken by MTCA members do end up in settlement.

What is certain is that I have never been hugged by the party on the other side at the end of a contested litigation case; in collaborative cases, more than once.



IRWIN KUHN was chair of the Tennessee Bar Association Subcommittee on Collaborative Law when the TBA proposed that the Supreme Court adopt what would become Rule 53. In that capacity he appeared before the court to argue for adoption of the rule. Kuhn was among the first Tennessee lawyers to be trained in collaborative family law practice and one of the most experienced. He is co-chair of the American Bar Association Committee on Collaborative Law. He is a founding member and past president of the Middle Tennessee Collaborative Alliance. He is also a member of the International Academy of Collaborative Professionals and serves on its Access to Collaboration Committee that focuses on new and streamlined approaches to collaborative practice. He is a member of Venick Kuhn Byassee Austin & Rosen PLLC in Nashville.
 


NOTES

1. See, In Re: Petition to Adopt a New Rule of the Tennessee Supreme Court Concerning the Practice of Collaborative Family Law, http://www.tncourts.gov/sites/default/files/order_soliciting_
comments_adm2017-01195.pdf (last accessed Aug. 1, 2019).
2. See, http://www.tncourts.gov/sites/
default/files/combined_comments_
adm2017-01195_10.pdf (last accessed Aug. 1, 2019).
3. Ibid.
4. See, International Academy of Collaborative Practitioners, Standards and Ethics, https://www.collaborativepractice.com/sites/default/files/IACP%20Standards%20and%20Ethics%202018.pdf, at page 16 (last accessed Aug.,1, 2019).
5. See, http://www.tncourts.gov/sites/default/files/order_setting_matter_for_hearing_1.pdf (last accessed Aug. 1, 2019).
6. See, http://www.tncourts.gov/sites/
default/files/order_adopting_new_sct_rule_53_adm2017-01195_2019apr1.pdf.
7. Tenn. Sup. Ct. Rule 53, Section 4(c).
8. Rule 53, section 4(b)(1).
9. Ibid. sec. 4(b)(3).
10. Ibid. sec. 4.
11. Ibid. sec.22.
12. Ibid. sec.5(b).
13. Ibid. sec.5(a).
14. Ibid. sec. 7.
15. A scrivener’s error in section 16 was corrected by the court on July 15, 2019. It should read: A collaborative family law communication is confidential to the extent agreed to by the parties in a signed agreement.
16. §14(b).
17. §14(c)(1-3).