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ETHICS SPOTLIGHT ETHICAL ISSUES FOR LAWYERS AS MEDIATORS Laura W. Morgan, Senior Attorney for Family Law, National Legal Research Group Executive Editor, Divorce Litigation This month, we will address briefly the ethical issues attorneys face when they act as mediators to parties contemplating divorce. The main focus of this spotlight is whether mediation constitutes "the practice of law." If the answer is yes, then do all of the ethical rules apply to attorney/mediators? If the ethical rules do not apply, are there other legal obligations that arise? For a more detailed discussion of these issues, see Andrew S. Morrison, Is Divorce Mediation the Practice of Law? A Matter of Perspective, 75 Cal. L. Rev. 1093 (1987); Fiona Furlan, Edward Blumstein & David N. Hofstein, Ethical Guidelines for Attorney-Mediators: Are Attorneys Bound by Ethical Codes for Lawyers When Acting AS Mediators?, 14 J. Am. Acad. Matr. Law. 267 (1997). A. Mediation as the Practice of Law Some states have issued ethical opinions that directly answer the question of whether mediation constitutes the practice of law. The opinions of Indiana, Kentucky, and New Hampshire state that mediation is not the practice of law. An ethics opinion of New Jersey states that mediation is the practice of law. There is little specific case law on the issue. If one looks to the case law considering what constitutes the practice of law in the context of prosecutions for the unauthorized practice of law and in the context of attorney malpractice, it would be reasonable to conclude that an attorney is "practicing law" when he is acting as a mediator, but a non-attorney is not practicing law when he acts as a mediator, because of the subjective expectations of the parties involved. Andrew S. Morrison, Is Divorce Mediation the Practice of Law? A Matter of Perspective, 75 Cal. L. Rev. 1093, 1125-26 (1987). More recent commentary has suggested however, that this "bifurcated approach" is not practical and is not in the best interests of the public. Rather, if an attorney mediator disavows the provision of legal services and gives only general information and not specific advice, mediation should not be judged to constitute the practice of law. B. Applicability of the Ethical Rules Governing Attorneys to Attorney Mediators An attorney is always obligated by the ethical rules as far as they related to his personal integrity. Further, Rule 5.7 of the Model Rules of Professional Responsibility govern "law-related services." Arguably, this rule applies to lawyers as mediators. C. Other Ethical Obligations Regardless of the applicability of the Model Rules of Professional Responsibility, a lawyer as mediator has certain legal and ethical obligations. The mediation agreement itself imposes contractual and fiduciary obligations, and the contract creates an agency relationship between the mediator and the participants. The most important of these is confidentiality. Confidentiality is essential to the success of mediation. See Irene Stanley Said, The Mediator's Dilemma: The Legal Requirements Exception to Confidentiality Under the Texas ADR Statute, 36 S. Tex. L. Rev. 579 (1995). The lawyer as mediator must also not engage in any kind of conflict of interest. Once an attorney has acted as a mediator to divorcing parties, that attorney cannot represent either party, even nominally, in the dissolution proceedings. E.g., Barbour v. Barbour, 146 Vt. 506, 505 A.2d 1217 (1986). See also New Hampshire Bar Association Ethics Committee Opinion 1983-4/4; New Jersey Supreme Court Advisory Committee on Professional Ethics Opinion 521; North Carolina State Bar Association Ethics Committee Opinion 298; Virginia Standing Committee on Legal Ethics Opinion 544. Because mediation now plays an integral role in dispute resolution, attorneys who undertake to act as mediators need to be familiar with their ethical obligations. Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690 © 1999 National Legal Research Group and LawTek Media Group, LLC all rights reserved No information or materials posted here are intended to constitute legal advice, nor can we guarantee the accuracy of posted information, especially as to each individual situation. LawTek does not independently check the information contained herein and does not refer or endorse any product, service, or firm. This site does not constitute an attorney-client relationship; local counsel should always be consulted. FAM-LAW-LIT: A SURVEY OF CURRENT PERIODICAL LITERATURE ADDRESSING FAMILY LAW ISSUES Family Law Advisor® HOME PAGE Lawyer-to-Lawyer