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Screening and Suitability Memo 1 (January 2, 2008)

handle is hein.nccusl/nccpub01123 and id is 1 raw text is: Memorandum To: NCCUSL Drafting Committee for the Uniform Collaborative Law Act CC: Observers From: Andrew Schepard Re: Screening, Informed Consent and Collaborative Law- Comments and Suggestions for Revision of the December 2007 Interim Draft and Reporter's Proposals and Comments Thereon Date: January 2, 2008 Issues to Be Addressed, Comments and Recommendations 1. Are the UCLA's provisions for informed consent to collaborative law adequate? What should the consequences be if the informed consent provisions are not satisfied? The January 2008 UCLA Draft includes provisions to enforce the informed consent requirement through the mechanism of a mandatory signed acknowledgement by the prospective collaborative client. See section 3(d) (1)-(9) and 3(e). The proposals contained in Elizabeth Kent's Memorandum dated December 21, 2007 include a safe harbor provision for inadequate informed consent disclosure by the lawyer. The January 2008 UCLA Draft does not contain a safe harbor provision, except that if the client signs the acknowledgment with the required disclosures, the client will have an uphill battle to convince a court or disciplinary body that he or she did not get enough information to make a rational choice. 2. Should the UCLA impose an obligation on collaborative lawyers to screen potential clients for suitability for collaborative law: at all? * because of domestic violence? * with what consequences if domestic violence is disclosed by the screening? - e.g. a presumption against participation in collaborative law without special training and safety precautions? The January 2008 Draft has no screening requirement and including one would require a new section. Specific proposals have been made in Elizabeth Kent's Memorandum dated December 21, 2007 which is included in the background memorandum on this subject. Rebecca Henry has made a proposal for screening for domestic violence which is appended to Elizabeth's memorandum. Screening and informed consent provisions UCLA January 2008 Drafting meeting Page I

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