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June 15, 2017
Court adopts collaborative rules for family law cases

Procedural and conduct rules necessary to implement a collaborative family law process established last year by the Florida Legislature have been approved by the Supreme Court.

The court adopted new Family Law Rule 12.745 and new Bar Rule 4-1-19 in a May 18 opinion with an effective date of July 1. The rules are needed to govern procedures and lawyers’ conduct in collaborative law cases.

Quote The Bar rules govern the conduct of the attorney in the collaborative process, including the necessity of explaining the process to the client, the client’s right to withdraw from the process at any time, the benefits and risks of the process, and that the client will likely have to get another attorney for litigation if the collaborative process fails. The attorney must also inform the client about the expected reasonable costs for the lawyers and mental and financial specialists involved in the collaborative process, and all parties and lawyers must have signed a written agreement before the lawyer can represent the client in the collaborative process.

Family Law Rule 12.745 outlines the procedures, including that the collaborative process can be used after litigation has started or in conjunction with other alternative dispute resolution procedures, such as mediation. It also specifies that the collaborative lawyer, or anyone else in his or her firm, cannot represent the client in a related court proceeding except in specific circumstances.

The court acted unanimously in the per curiam opinion, In Re: Amendments to Rule Regulating The Florida Bar 4-1.19 and Florida Family Law Rule of Procedure 12.745 (Collaborative Law Process), Case No. SC16-1685.

The Legislature in 2016 passed a statute establishing collaborative law, but made it effective 30 days after the Supreme Court adopted procedural and conduct rules to implement the legislation. The act gives its purpose as encouraging “the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process.”

“I’m thrilled they’re finally done,” said attorney Robert Merlin, who represented the Family Law Rules Committee and himself at the Supreme Court’s oral argument. “I think the rules will go very far in protecting the public, making sure attorneys holding themselves out as providing the collaborative process are actually going to do the right things and follow the provision of the rules.”

He said he expects more lawyers to offer, and more clients to request, collaborative resolutions to marriage dissolution as a way to terminate marriages without bitter litigation, while protecting the interests of the parties and their children.

Merlin noted the court originally considered collaborative rules in 2011, but declined to take action then, citing a lack of legislative action.

He particularly cited provisions in the rules that require collaborative lawyers to screen their clients for signs of domestic violence, something he said requires a higher standard of collaborative attorneys than in other areas of practice.

“Some may view that as a burden. I view that as the right thing to do,” Merlin said. “It doesn’t matter what area of law you practice in, if you are aware of someone who is a victim of domestic violence, you should do something about it.”

[Revised: 05-11-2018]