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Rules committee favors collaborative proposal

Gives preliminary OK to measures designed to implement new law

ANNAPOLIS — A push for collaboration rather than litigation in divorce and other civil disputes gained momentum in Maryland on Thursday, when the Judiciary’s rules committee gave preliminary approval to a proposal spelling out attorneys’ responsibilities before, during and after a collaborative law process.

For example, the proposed rule would require attorneys who plan to represent a client in the collaborative process to first make a “reasonable effort” to discover whether the client has had a “coercive or violent relationship” with another party. If the investigation reveals such a strain, the lawyer would have to decide if the collaborative process — a form of alternative dispute resolution — is appropriate.

The rule proposed by the Standing Committee on Rules of Practice and Procedure is designed to implement the Maryland Uniform Collaborative Law Act, which the General Assembly enacted last session. The law goes into effect Oct. 1.

Appearing before the committee Thursday, attorney Craig J. Little said the collaborative law process helps relieve the strain on judicial dockets by enabling parties to resolve their disputes through open discussion without the acrimony of discovery, dispositions and cross-examination. Litigants who opt for the collaborative process “don’t come back to court as often,” said Little, a Towson solo practitioner and founder of the Maryland Collaborative Law Association Inc.

Maryland Court Administrator Pamela Q. Harris, a rules committee member, voiced support for the collaborative law process but also concern that court cases would be held “in limbo” while litigants pursued the alternative resolution. Under the proposed set of rules, the parties can request the court to stay proceedings during their negotiations. “The chief judge is very keen on time standards,” Harris said, referring to Court of Appeals Chief Judge Mary Ellen Barbera.

Retired Court of Appeals Judge Alan M. Wilner, the committee’s chairman, noted that the proposed rule addresses Harris’ concern by requiring judges to set a specific end-date for the stay, which they can later extend.

Little told the committee he supports that provision giving discretion to the judges. Setting a specific time limit for collaboration could undermine the process, he said.

“I don’t want to put people under the gun,” Little added.

No one else at Thursday’s meeting voiced concerns over the proposed rules.

Under the uniform law and proposed implementing rules, lawyers who represent clients in collaborative proceedings would be prohibited from representing them in subsequent court proceedings related to the collaborative process. The prohibition would extend to all lawyers at the attorney’s law firm, unless that firm is a legal services organization or government agency.

The attorney would be obliged to tell the client that he or she would have to seek new counsel or proceed without a lawyer if the collaborative process ends without matters being fully resolved.

The proposed rule also contains an “informed consent” provision requiring lawyers to provide their clients with “information that the attorney reasonably believes is sufficient for the client to make an informed decision about the material benefits and risks” of a collaborative law process.

The attorney must also tell the client the process is voluntary and that any party can end it for any reason or no reason at all and resume with the litigation.

The rules committee did not indicate when it revisit the proposal, which requires formal approval before it can be submitted to the Court of Appeals for a final decision. The committee’s next meeting is scheduled for Oct. 10.

After Thursday’s session, Little said the collaborative process lowers the cost and stress of litigation and results in enduring settlements more than 90 percent of the time.

Collaboration gives parties a sense of “ownership” they lack in litigation, he said.

“They are making their own decisions,” Little added.