Florida is one step closer to recognizing Collaborative Law

Brevard County Judge Issues Administrative Order Authorizing Collaborative Conflict Alternative Resolution Model

Following the lead of Judith S. Kaye, Chief Judge of the State of New York, Brevard Judge J. Dean Moxley recently wrote Administrative Order 07-20-B. The Order asserts the basic principle of collaborative law that the parties agree not to litigate any of their issues. By signing the Order,Brevard County not only recognizes and endorses the Collaborative Law Model as an alternative to traditional litigation, but also allows participants to abate existing Court proceedings and participate in the Collaborative process.

The highlights of the Administrative Order include the following:

1. A requirement for the candid exchange of information between the parties
2. The use of mental health and financial professionals to assist with the process
3. The Court will not set any hearings on a matter that has been filed yet designated a collaborative matter.
and
4. An acknowledgement of the confidentiality of the entire process.

The Administrative Order provides that, where a case has been filed, the parties are to provide status reports every 90 days. The Order differs from the traditional collaborative law model utilized by many Florida practitioners in that it allows parties to file a petition for dissolution. Most collaborative attorneys adhere to the rule that the agreement to keep the entire proceeding out of court means that neither party will file anything, including a petition, while the parties are in the process of negotiating.

Administrative Order 07-20-B also states the controversial yet crucial provision that collaborative attorneys are contractually required to withdraw from representation if the parties fail to reach an agreement. In February, 2007, the Colorado State Bar issued an ethics opinion stating that the agreement not to go to court is a violation of a lawyer's duty of representation to a client. The Brevard Judge sees it differently and feels, as do many collaborative proponents, that clients and their lawyers can enter into a valid contract that the lawyer will withdraw from representing the client if the case goes to court.

The Order is a strong endorsement for collaborative law in the state of Florida, which has been slow to give any legal recognition to the Collaborative process. To date, the Florida Bar has considered, although has not yet adopted, a Collaborative Law statute, and many judges have been wary of issuing opinions or orders endorsing the practice.


To read the text of the Adminstrative Order, visit www.flcourts18.org.