Collaborative law divorce rules in the works
Amendments to the Florida Family Law Rules of Procedure needed to carry out a collaborative law divorce bill passed by the Legislature and signed by the governor earlier this year have been endorsed by the Bar Board of Governors. But the board tabled a companion proposal to amend the Bar’s Rules of Professional Conduct, also needed before the law goes into effect.
The law, HB 967, became Chap. 2016-93, Laws of Florida, and provides that parts of F.S. §§61.55-61.58 will not become effective until 30 days after the Supreme Court procedural and Bar professional conduct rules are consistent with the statute.
Bob Merlin, representing the Family Law Rules Committee, asked the board at its May 20 meeting to waive second reading on the Bar rules so the process could be expedited.
While board members praised the collaborative law process, several expressed concerns bypassing normal board procedures for amending Bar rules. Rules Committee Chair Margaret Mathews said while the Family Law Rules Committee recommended changes to the Bar rule, neither the Rules Committee nor any other board group had reviewed it.
“The problem that we have here is that the [procedural] rule has been through the process; the Rule Regulating The Florida Bar has not been through any process,” said Mathews. She suggested approving the family law procedural rule but having the Bar conduct rules review through the regular Bar process. Board member Carl Schwait moved to separate the procedural and conduct proposals so the Bar rules could go through the normal review process. The board approved that motion on a voice vote.
Bar Ethics Counsel Elizabeth Tarbert said many issues included by the Family Law Rules Committee in the proposed Bar rule were already covered by other sections of Bar rules, while other parts perhaps should be in the procedural rules rather than Bar rules. She also noted that no notice had been published for Bar members to give their input.
Despite the reservations about the Bar rules, board members expressed support for the collaborative law process.
“This is sort of a parallel track for folks getting divorced. It uses some tools to allow for a cooperative process,” said board member Dori Foster-Morales, adding it could help resolve divorces “in a more peaceful manner.”
Foster-Morales asked for an expedited review of the Bar conduct rules.
“This process is indispensable; we’ve got to have it, folks,” board member Rick Nail said. “Family law is becoming more and more out of control.”
Merlin said there were six parts to the proposed Bar conduct rule amendment, and while some of the conduct rules might be able to be transferred to procedural rules, most would have to be in the Bar Rules of Professional Conduct.
“The first [section] deals with what must be included in a collaborative law agreement. That doesn’t exist in any other rule. The reason it’s in the Rules of Professional Conduct is that the vast majority of collaborative matters start without any court proceedings. It will not apply if it’s in a rule of procedure, so it has to be in a rule of professional conduct,” he said.
Another section deals with voluntary disclosure of information and “that needs to be in a rule of professional conduct because if it’s only in a court rule, it’s not going to apply to the vast majority of collaborative matters that are not involved in litigation until the very end with the approval of an agreement,” he added.
Two sections that deal with the appropriateness of the collaborative law process and how parties in coercive or violent relationships will be protected in that process also must be in the conduct rules, Merlin said.
The new collaborative law allows divorcing parties to hire attorneys and necessary experts and engage in collaboration to resolve their case. If the collaborative effort fails, the parties would have to retain new attorneys before going to litigation. Critics have said it could increase time and costs for divorcing couples because if the collaborative process — which can be potentially expensive — fails, they will still have to go through a regular court-based divorce proceeding.
The board voted 43-0 to recommend the Supreme Court approve the procedural rule.
