October 2009

IN THIS ISSUE:

Message from the President
Legislative News
Update on UIFSA 2008
New Drafting and Study Committees
New Acts 2009
ULC in the News



MESSAGE FROM THE PRESIDENT
Robert A. Stein

First, I'd like to say how deeply honored I am by the trust and confidence that you have placed in my ability to lead this great organization. I pledge to do everything I can to advance our work and uphold our traditions over the next two years of my tenure as President.

As I reported to you in Santa Fe, at my request the Executive Committee has authorized the appointment of two new committees. The first is the Committee to Review the ULC Drafting Process, chaired by Virginia Commissioner Lane Kneedler. This Committee will review our drafting process from start to finish, and make recommendations on ways in which we can improve this process.

The ULC is known for the high quality of its work and its inclusive, non-partisan, and deliberative drafting process. The ULC has been turning out quality products for more than a hundred years, but that history shouldn't stop us from examining our methods of drafting, or discovering whether or not there is a way to improve our process. We need to determine if there are new technologies that we can employ to make our drafting work even more successful. Because of the limited number of slots on our drafting committees, we need to find out if there are ways in which more commissioners can make contributions as we prepare our drafts. We need to improve our outreach to entities that may be interested in or affected by our acts so that their views are more fully understood and considered.

The Committee to Review the ULC Drafting Process will be meeting in Chicago this fall, and we'll keep you updated as to the Committee's progress and recommendations.

The second new initiative is the Committee on Federalism and State Law, chaired by Pennsylvania Commissioner Ray Pepe. Our federal system in the United States is a cooperative balance between federal and state laws, but there have been times in our nation's history when the role of the federal government has expanded in response to the crises of the day. I believe the ULC needs to think strategically about how best to advance an understanding of the importance of state law during the current period of potentially expanding federal government. This Committee is charged with identifying strategies to improve recognition and respect for the role of state law within the federal government and by public policy decision makers. Additionally, the Committee will develop strategies to successfully integrate uniform state laws with federal law.

The Committee recently met in Washington, DC, and will work together with various stakeholder groups throughout the year to improve the interaction of federal and state law. Commissioners will be kept updated on the Committee's progress.

Lastly, I'd like to remark upon the involvement of so many new commissioners in our work. More and more it seems that our new members are diving right in to the important work of the ULC, not just participating on the floor during our annual meeting debates, but also requesting membership in study and drafting committees and fully participating in committee work. As someone who has been a commissioner for many years, I know that it is impossible to fully appreciate the important work that the ULC does without getting involved. The fact that so many new commissioners are so involved certainly bodes well for our future. Of course, it's important for all commissioners - whether new or old - to be involved and engaged: without the work of our own members, this organization could not function and thrive.

Thanks to each of you for your time and contributions to the work of the ULC. I look forward to working with you all during this coming year.

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Legislative News
2009: A Record Year in the Legislatures

As you all know, the planning for the 2010 legislative year has been underway for some time now. That work continues. However, since the books are officially closed on the 2009 legislative year, this is a good time to reflect on what a great year we just had. 2009 turned out to be a record year, with 130 enactments of uniform acts and 272 introductions.

As mentioned in an earlier newsletter, probably the biggest legislative news of the year was the adoption of the Uniform Probate Code in Massachusetts. It was an effort that took nearly ten years, but all the work finally paid off when Massachusetts Governor Deval Patrick signed HB1633 into law last January. Because the Massachusetts UPC included most of the free-standing acts from the UPC, its enactment total for the year quickly stood at nine. When Massachusetts adopted the Uniform Prudent Management of Institutional Funds Act this summer, the total was raised to 10.

New Mexico had another exceptional year, enacting nine uniform acts. Nevada and North Dakota enacted seven uniform acts. Oklahoma and Washington enacted six acts. As a matter of fact, in 2009, every state had at least one introduction, and nearly every state recorded enactments. Our thanks to everyone who made this happen.

Enactment Committees

Two years ago the ULC Legislative Committee approved the creation of a limited number of "Enactment Committees" in an effort to improve the ULC's overall legislative activity. Enactment Committees for specific acts may be authorized upon the completion of an act, and are separate from Standby Committees. Enactment Committees are made up of two or three members from the drafting committee and are charged with preparing an enactment plan for that act and actively working for enactments.

At its fall 2009 meeting, the Legislative Council recommended the creation of four new Enactment Committees for: Uniform Collateral Consequences of Conviction Act; Uniform Unsworn Foreign Declarations Act; Uniform Commercial Code Articles 1 and 7; Uniform Real Property Transfer on Death Act; and Uniform Power of Attorney Act.

There are now 14 enactment committees to promote enactment of the following acts:

1. Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
2. Uniform Anatomical Gift Act
3. Uniform Business Entities Acts
4. Uniform Collateral Consequences of Conviction Act
5. UCC Articles 1 and 7
6. Uniform Common Interest Ownership Act
7. Uniform Emergency Volunteer Health Practitioners Act
8. Uniform Interstate Depositions and Discovery Act
9. Uniform Power of Attorney Act
10. Uniform Principal and Income Act
11. Uniform Prudent Management of Institutional Funds Act
12. Uniform Real Property Transfer on Death Act
13. Uniform Trade Secrets Act
14. Uniform Unsworn Foreign Declarations Act

There is a legislative staff liaison assigned to every Enactment Committee. For more information about how an Enactment Committee can help a specific enactment effort in your state, please contact the Chicago office.

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Update on UIFSA 2008

Delaware Commissioner Battle Robinson testified to the Senate Foreign Relations Committee on October 6, 2009, regarding the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. Commissioner Robinson expressed the ULC's support of Senate ratification of the Convention and answered the Committee's questions regarding implementation of the Convention through the amendments approved in 2008 to the Uniform Interstate Family Support Act.

Joining Commissioner Robinson on the panels were Keith Loken (U.S. Department of State), Vicki Turetsky (U.S. Department of Health and Human Services), and Alisha Griffen (New Jersey Department of Human Services)

Video of the testimony and the testimony submitted can be found at: http://foreign.senate.gov/hearings/2009/hrg091006a.html

If the Convention is ratified by the Senate, then states will need to get ready to enact the 2008 amendments to UIFSA. The Chicago office will keep you posted on developments.

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New Drafting and Study Committees

At the 2009 Annual Meeting in Santa Fe, the Executive Committee authorized the appointment of two new drafting committees and two new study committees.

The new drafting committees are:

Drafting Committee on Authentication and Preservation of State Electronic Legal Materials
This drafting committee will prepare an act that provides guidance to states on authenticating and preserving state electronic legal materials. The committee will review possible application to state administrative codes and registers, state statutes and session laws, and state appellate and supreme court opinions, as well as the impact of copyright practices and the conversion and destruction of original source materials.

Drafting Committee on Visitation and Custody Issues Affecting Military Personnel and Their Families
This drafting committee will prepare an act that provides standards and procedures for resolving visitation and custody issues affecting military personnel and their families, which may include resolution of matters in intrastate, interstate, and international contexts.

The new study committees are:

Study Committee on an Act on "Mareva Injunctions"
This study committee will consider and make recommendations concerning the need for and feasibility of drafting a uniform act that provides authority for Mareva Injunctions - freezing orders - entered in one jurisdiction that would prevent a defendant in litigation pending in another jurisdiction from dissipating assets located in the first jurisdiction until the outcome of the associated lawsuit is settled.

Study Committee on a Mortgage Subrogation Act
This committee will consider and make recommendations concerning the need for and feasibility of drafting a uniform act that makes it clear that a mortgagee of a re-financed mortgage is subrogated to the rights and priority of the original mortgagee.

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New Acts 2009

At the Annual Meeting in Santa Fe, the ULC approved five new uniform acts: the Uniform Collaborative Law Act; the Uniform Collateral Consequences of Conviction Act; the Uniform Law Enforcement Access to Entity Act; the Uniform Real Property Transfer on Death Act; and the Uniform Statutory Trust Entity Act. Here's a brief summary of each new act.

The Uniform Collaborative Law Act standardizes the most important features of collaborative law practice, mindful of ethical concerns as well as questions of evidentiary privilege. In recent years, the use of collaborative law as a form of alternative dispute resolution has expanded from its origin in family law to other areas of law, including insurance and business disputes. As the practice has grown it has come to be governed by a variety of statutes, court rules, formal, and informal standards. A comprehensive statutory frame work is necessary in order to guarantee the benefits of the process and to further regulate its use. The Act encourages the development and growth of collaborative law as an option for parties that wish to use it as a form of alternative dispute resolution.

The Act mandates the essential elements of disclosure and discussion between prospective parties in order to guarantee that all parties enter into the collaborative agreement with informed consent. The need for attorneys to provide clear and impartial descriptions of the options available to the party prior to deciding upon a course of action is stressed throughout the Act. Additionally, the Act mandates that the collaborative agreement contains the disqualification provisions that are essential to the collaborative process. The disqualification requirements create incentives for cooperation and settlement. By standardizing the collaborative process, the Act secures the benefits of collaborative law for the parties involved while providing ethical safeguards for the lawyers involved.

The Uniform Collateral Consequences of Conviction Act improves the understanding of penalties that attach when an individual is convicted of an offense, and in appropriate circumstances, offers a mechanism to provide partial relief from the disabilities. The Act facilitates notification of collateral consequences before, during, and after sentencing. Under the provisions of the Act, states are to create a collection of all collateral consequences, with citations and descriptions of the relevant statutes. At or before arraignment, individuals will be advised of the particular collateral consequences associated with the offense for which they are charged. Notice is also to be given at the time of sentencing, and if an individual is sentenced to prison, at the time of release. Formal advisement promotes fairness and compliance with the law.

The Act provides mechanisms for relieving collateral sanctions imposed by law. The Act creates an Order of Limited Relief, designed to relieve an individual from one or more collateral consequence based on a showing of fitness for reentry. The Order does not automatically remove the consequence, but does remove the automatic disqualification imposed by law. A state agency remains able to disqualify an individual on a case by case basis. The Act also creates a Certificate of Restoration of Rights. The Certificate is granted to individuals who demonstrate a substantial period of law-abiding behavior consistent with successful reentry and desistance from crime. Issuance of a Certificate facilitates reintegration of those individuals who have demonstrated an ability to live a lawful life.

The Uniform Law Enforcement Access to Business Entity Act (ULEAEIA) addresses the need for law enforcement to have ready access to information regarding the owners and managers of entities established under state law. ULEAIEA is designed to be a substitute for the Incorporation Transparency and Law Enforcement Assistance Act (S. 569), co-sponsored by Senators Levin, Grassley and McCaskill. ULEAIEA will help address some national security concerns relating to companies operating for the purpose of organized crime, terrorist financing, securities fraud, tax evasion and other misconduct, while at the same time balancing important privacy concerns. The Act is intended to provide a viable state law alternative to pending federal legislation. Rather than filing and updating "beneficial ownership" information, ULEAEIA provides that LLC's, partnerships, trusts, and other entities must designate a "records contact", which is responsible for producing information upon an appropriate request. ULEAEIA is intended to be more comprehensive and less invasive that S. 569. Legislative efforts for this act are on hold pending the debate about the federal bill.

The Uniform Statutory Trust Entity Act (USTEA) addresses the need for a uniform law to regulate statutory business trusts. This need arises from the increasing popularity of statutory trust entities, chiefly in the structured finance and mutual fund industries. Practitioners, entrepreneurs, and scholars struggle to understand the law governing statutory trusts. The case law on statutory trusts is sparse. USTEA validates the statutory trust as a permissible form of business organization and brings the disparate and often inadequate existing state laws into uniformity. USTEA more closely resembles a generic corporate code or unincorporated entity law than it does the Uniform Trust Code (UTC). However, nothing in this Act displaces the common law of trusts, or the UTC, with respect to such trusts. The USTEA uses Delaware Statutory Trust Act as a starting point for the Act but adds several innovations. The USTEA will be used primarily as a business organization tool and will clarify this area of law.

Asset-specific mechanisms for the non-probate transfer of property and funds are now common - the proceeds of life insurance policies and pension plans, securities registered in transfer on death (TOD) form, and funds held in pay on death (POD) bank accounts, are good examples of property that have benefitted from this trend in modern property law. However, a straightforward, inexpensive, and reliable means of passing real property, which may be a decedent's major asset, directly to a beneficiary is not generally available. The Uniform Real Property Transfer on Death Act (URPTODA) enables an owner of real property to pass it to a beneficiary upon the owner's death by a similar mechanism - simply, directly, and without probate. Under URPTODA, the property passes by means of a recorded transfer on death (TOD) deed. URPTODA sets forth the requirements for the creation and revocation of a TOD deed, and clarifies the effect of the TOD deed for all parties while the transferor is living and after they pass away. A TOD deed is effective without consideration, and without notice or delivery to the beneficiary. Beneficiaries take the property subject to allowed claims against the transferor's estate. If the intended beneficiary wishes, they may disclaim all or part of their beneficiary interest in the property. Finally, URPTODA provides optional language for forms to create and revoke TOD deeds.

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ULC in the News

In recent months the ULC, along with specific uniform acts, have been spotlighted in numerous news articles. Highlights of some recent news articles on ULC acts can be found below. Click on the highlighted link to read the entire article.

South Carolina Lawyers Weekly
October 5, 2009
"ULC contributes to S.C. statutes"
By Fred Horlbeck

The next time you help a client work out the details of donating an organ - not that every lawyer does, but you never know - you can thank the Uniform Law Commission for donating the legislation that guides you every step of the way.

The S.C. Anatomical Gift Act, enacted in May, revised previous laws in light of changes in federal law, all with the aim of facilitating organ transplants.

It was one of five ULC bills recently before the S.C. General Assembly. Four bills are still pending. All underscore the ULC's influence on the state's legal community.

Click here to read entire article.

Community Banker
October 1, 2009
"Finding Good Amidst Trouble: The Uniform Debt-Management Services Act"
By L.H. Wilson

With all of the current focus on the economy, issues facing America's homeowners and consumers have garnered a lion's share of attention. And well they should. Comparisons with economic hardships of earlier generations - or at least a fear of such - abound. Millions of Americans (with or without job losses) are facing credit delinquencies, foreclosures, or possibly bankruptcies. Many of them have sought the services of professionals to help steer their course. Some debt-services professionals have served them well; some have not. The Uniform Debt-Management Services Act is an attempt to weed out those who have not.

Click here to read entire article.

Washington Sunday Times
September 27, 2009
"Till debt do us part"
By William Ehart

...The industry took off four years ago after federal bankruptcy reform made it more difficult for debtors to shed their obligations, according to Michael P. Kerr, legislative director for the National Conference of Commissioners on Uniform State Laws. The group is appointed by the nation's governors.

"Debt settlement really popped up into existence in 2004-2005, and states are just now adjusting to the mass of market participants," Mr. Kerr said. "There are some completely illegitimate players out there."

Click here to read entire article.

Danbury New-Times
September 20, 2009
"Road to Security: New act may ease long probate proceedings."

... A number of states have adopted laws that permit real estate to pass to heirs outside of probate through a transfer-on-death deed. ... While transfer-on-death deeds are not for everyone, "they help many people, especially those whose major asset is real property," said Katie Robinson, spokeswoman for the National Conference of Commissioners on Uniform State Laws. The group drafts and promotes the enactment of uniform laws that are designed to solve problems common to all the states. A few months ago, at its annual meeting, the group adopted the Uniform Real Property Transfer on Death Act, and will urge states to adopt the model act.

Click here to read entire article.

Finance and Commerce
September 1, 2009
"Collaboration legislation? Supporters of collaborative law want Minnesota to standardize their practice"
By Michelle Lore

Minnesota, the birthplace of collaborative law, could be among the first states in the nation to pass a law formalizing the practice if local family law practitioners get their way.

Click here to read entire article.

The Boston Globe
August 17, 2009
"Nonprofits get relief from endowment law."
By Erin Ailworth

"Under a measure signed into law by Governor Deval Patrick, nonprofit organizations may now be able to spend more of their endowments, helping some avoid cutting programs and staff because of the recession."

Click here to read entire article.

New Jersey Law Journal
August 17, 2009
"Evolving Standards for 'Institutional Funds'"
New Jersey Adopts New Uniform Statute"
By Steven K. Mignogna and Kenneth J. lackey

... UPMIFA appears to be an improvement over its predecessor. Even with the heightened protection of donor intent, charitable institutions should be able to receive relief more easily in appropriate circumstances.

Click here to read entire article.

The Charlotte Observer
July 28, 2009
"Nonprofits can tap nest eggs."
By Steven Brown

"Nonprofit groups caught in the economic storm are gaining a source of rainy-day money: themselves. A recent change in N.C. law gives new latitude to groups that have endowments - the investment portfolios meant to supplement their income in good times and to shore them up when times are tough. ... The new law eliminates the emphasis on dollar value and makes prudence the guiding principle. Hence the law's mouthful of a title: Uniform Prudent Management of Institutional Funds Act."

Click here to read entire article.

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ULC Quarterly Report Published by the
Uniform Law Commission
Kate Robinson, Editor
katie.robinson@nccusl.org

Uniform Law Commission (ULC)
111 N. Wabash Ave., Suite 1010 Chicago, IL 60602
Ph: (312) 450-6600 Fax: (312) 450-6601
www.nccusl.org