New Collaborative Rules in Maryland
In 2014, Maryland adopted its own version of the Uniform Collaborative Law Act. The Maryland Act established a statutory framework-- and gave a statutory blessing—to a process for resolving family law issues some of us had been using locally since 1996. Now rules implementing the statute have been adopted in Maryland. They go into effect on July 1, 2015. The rules fill in two big gaps in the Maryland statute.
The Standard Disqualification Provision Now Applies In Maryland
A cornerstone of the collaborative law process is the disqualification provision. The disqualification provision is in the Model Uniform Collaborative Law Act drafted by the National Conference of Commissioners on Uniform State Laws. It’s a provision that seems really odd when you first hear it. Yet it’s key to what makes the collaborative process so successful.
In the collaborative process, clients contract to resolve all issues privately, without going to court. To strengthen this commitment, each client further agrees that should one party abandon the process and go to court, the collaborative attorneys will be disqualified from serving as litigation counsel. Each client will have to engage an entirely new attorney to proceed in court. Since most clients don’t want to start all over with new counsel, this disqualification provision incentivizes the parties to stay in the process and find mutually acceptable solutions.
More importantly, the disqualification provision clarifies the role and ethical responsibilities of the collaborative attorney. The disqualification provision ensures that everyone at the table—including the attorneys—are working within an interest-based model with full transparency, and no one is posturing or holding back to preserve a possible litigation strategy.
Attorneys are professionals tasked with acting in their client’s interests and not in their own interests. Nevertheless, some clients are comforted by that fact that their collaborative attorney, who might earn substantially more fees litigating a case rather than settling it, knows he or she will be disqualified from serving as trial counsel should the collaborative process fail.
The critical disqualification provision was left out of the 2014 Maryland Uniform Collaborative Law Act. It is now contained in the implementing rules. They state that a collaborative lawyer cannot represent a client in a court proceeding related to the collaborative matter. They mandate that a collaborative attorney inform a client that the attorney will be disqualified from representing the client in litigation should the collaborative process not result in a negotiated settlement.
This is good news. The Maryland statute is now consistent with the national, model statute (and with the District of Columbia Uniform Collaborative Law Act of 2012) in mandating that collaborative counsel be disqualified from serving as litigation counsel.
Court Cases Can be Stayed if Litigating Parties Opt to Move to the Collaborative Process
Some people in pending court cases decide during the course of their court experience that it would be better to try to resolve sensitive family issues using the collaborative process than to continue in court. Under the national, model statute (and the District of Columbia statute), litigating parties simply notify the court that they’ve signed a collaborative law participation agreement, and that notice operates as a request to the court to stay the litigation. The court can then put the court proceedings on hold while the parties work to resolve the case collaboratively.
The unusual version of the Maryland Uniform Collaborative Law Act adopted by the Maryland legislature did not contain this provision. The new Maryland rules fix this. If there is pending litigation, the parties can file a motion asking the court to stay the proceedings. They can do so as long as the clients have entered into a Collaborative Law Participation Agreement conforming to the Maryland statute and rules and containing the disqualification provision discussed above.
The Maryland Uniform Collaborative Law Act is found at Md. Code. Ann., Cts. & Jud. Proc. Sec 3-2001 through 3-2015. The Maryland Rules are at Md. R. 17-501 through 17-507.
This is not legal advice. Please read our “disclaimer” to understand why this information is not a substitute for legal advice.