Virginia Code 20-184: Limits of privilege
A. There is no privilege under § 20-182 for a collaborative law communication that is:
Terms Used In Virginia Code 20-184
- Adult: means a person 18 years of age or more. See Virginia Code 1-203
- Collaborative law communication: means a statement, whether oral or in a record, or verbal or nonverbal, that (i) is made to conduct, participate in, continue, or reconvene a collaborative law process and (ii) occurs after the parties sign a collaborative law participation agreement and before the collaborative law process is concluded. See Virginia Code 20-168
- Collaborative law process: means a procedure intended to resolve a collaborative matter without intervention by a tribunal in which persons sign a collaborative law participation agreement and are represented by collaborative lawyers. See Virginia Code 20-168
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Contract: A legal written agreement that becomes binding when signed.
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Party: means a person who signs a collaborative law participation agreement and whose consent is necessary to resolve a collaborative matter. See Virginia Code 20-168
- Person: includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof. See Virginia Code 1-230
- Proceeding: means a judicial, administrative, arbitral, or other adjudicative process before a tribunal, including related prehearing and post-hearing motions, conferences, and discovery. See Virginia Code 20-168
- Process: includes subpoenas, the summons and complaint in a civil action, and process in statutory actions. See Virginia Code 1-237
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Virginia Code 20-168
- Rescission: The cancellation of budget authority previously provided by Congress. The Impoundment Control Act of 1974 specifies that the President may propose to Congress that funds be rescinded. If both Houses have not approved a rescission proposal (by passing legislation) within 45 days of continuous session, any funds being withheld must be made available for obligation.
- Tribunal: means a court, arbitrator, administrative agency, or other body acting in an adjudicative capacity that, after presentation of evidence or legal argument, has jurisdiction to render a decision affecting a party's interest in a matter. See Virginia Code 20-168
1. Available to the public;
2. A threat or statement of a plan to inflict bodily injury or commit a crime of violence;
3. Intentionally used to plan a crime, commit or attempt to commit a crime, or conceal an ongoing crime or ongoing criminal activity; or
4. In an agreement resulting from the collaborative law process, evidenced by a record signed by all parties to the agreement.
B. The privileges under § 20-182 for a collaborative law communication do not apply to the extent that a communication is:
1. Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or related to a collaborative law process; or
2. Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child or adult, unless the child protective services or adult protective services unit of the local department of social services is a party to or otherwise participates in the process.
C. There is no privilege under § 20-182 if a tribunal finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting confidentiality, and the collaborative law communication is sought or offered in (i) a court proceeding involving a felony or misdemeanor or (ii) a proceeding seeking rescission or reformation of a contract arising out of the collaborative law process or in which a defense to avoid liability on the contract is asserted.
D. If a collaborative law communication is subject to an exception under subsection B or C, only the part of the communication necessary for the application of the exception may be disclosed or admitted.
E. Disclosure or admission of evidence excepted from the privilege under subsection B or C does not make the evidence or any other collaborative law communication discoverable or admissible for any other purpose.
F. The privileges under § 20-182 do not apply if the parties agree in advance in a signed record, or if a record of a proceeding reflects agreement by the parties, that all or part of a collaborative law process is not privileged. This subsection does not apply to a collaborative law communication made by a person who did not receive actual notice of the agreement that all or part of a collaborative law process is not privileged before the communication was made.
2021, Sp. Sess. I, c. 346.