State Bar of Arizona Ethics Opinions

96-01: Mediation; Divorce
2/1996

This opinion addresses three issues with respect to attorneys who function as mediators for non-client parties as follows:  (1) ER 2.2 does not apply to the attorney-mediator who acts exclusively as a neutral for non-clients during the mediation process; (2) ER 2.2 does not apply to the attorney-mediator who drafts a non-binding memorandum of understanding if full disclosure is made to the participants; and (3) the Ethics Committee could not reach a consensus as to whether or not attorney-mediators may prepare pleadings for the mediation participants. [ERs 1.2, 1.7, 1.8, 2.2, 3.1, 3.3, 8.4]

FACTS[1]

The inquiring attorney is engaged in the practice of family and divorce mediation.  He asks if it would be ethical to prepare (a) a non-binding memorandum of understanding between parties or (b) a proposed decree of dissolution of marriage and related documentation if the parties to the mediation were provided full disclosure, gave informed consent after being advised to seek separate and independent counsel to review the documentation, and were advised that neither is being provided legal advice but only informal suggestions arising through the mediation process.

QUESTION PRESENTED

In addressing whether an attorney-mediator may draft a non-binding memorandum of understanding or court documents to implement such a memorandum, three questions are presented:

1. Does ER 2.2 apply to an attorney-mediator during the mediation process, apart from anything being reduced to writing?

2. Does ER 2.2 apply to an attorney-mediator who prepares a non-binding memorandum of understanding?

3. Does ER 2.2 apply to an attorney-mediator who prepares pleadings that would implement the memorandum of understanding?

Relevant Ethical Rules

Preamble to Rules of Professional Conduct

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A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs.

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Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law.  However, a lawyer is also guided by personal conscience and the approbation of professional peers.  A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.

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ER 1.2  Scope of Representation

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(c) A lawyer may limit the objectives of the representation if the client consents after consultation.

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Comment to ER 1.2:

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An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.  Thus, the client may not be asked to agree to representation so limited in scope as to violate ER 1.1, or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue.

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ER 1.7  Conflict of Interest:  General Rule

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(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation.  When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Comment to ER 1.7:

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A client may consent to representation notwithstanding a conflict.  However, as indicated in paragraph ... (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.

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ER 2.2  Intermediary

(a) A lawyer may act as intermediary between clients if:

(1) the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client's consent to the common representation;

(2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the clients' best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and

(3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.

(b) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.

(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied.  Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.

Comment to ER 2.2

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The rule does not apply to a lawyer acting as arbitrator or mediator between or among parties who are not clients of the lawyer, even where the lawyer has been appointed with the concurrence of the parties.  In performing such a role the lawyer may be subject to applicable codes of ethics, such as the Code of Ethics for Arbitration on Commercial Disputes prepared by a Joint Committee of the American Bar Association and the American Arbitration Association.

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ER 3.1  Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law . . . .

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ER 3.3  Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) except as required by applicable law, offer evidence that the lawyer knows to be false.  If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

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ER 8.4  Misconduct

It is professional misconduct for a lawyer to:

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(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) Engage in conduct that is prejudicial to the administration of justice . . . .

OPINION

This inquiry raises issues that concern the mediation process, a form of alternative dispute resolution.  Mediation is non-binding dispute resolution in which a neutral third party meets with the parties to the dispute and guides them in seeking a mutually acceptable resolution of the dispute.  Under the American Bar Association's Standards of Practice for Lawyer Mediators in Family Disputes (1984) ("ABA Standards" or "Standards"), "family mediation" is defined as:

 . . . a process in which a lawyer helps family members resolve their disputes in an informative and consensual manner.  This process requires that the mediator be qualified by training, experience and temperament; that the mediator be impartial; that the participants reach decisions voluntarily; that their decisions be based on sufficient factual data; and that each participant understands the information upon which decisions are reached.  While family mediation may be viewed as an alternative means of conflict resolution, it is not a substitute for the benefit of independent legal advice.  (ABA Standards "Preamble").

If a lawyer acts as a mediator or neutral third party in the mediation process, by virtue of that role the lawyer cannot represent either or both of the mediation participants.  Indeed, the ABA Standards provide that the attorney-mediator shall inform the parties that the mediator cannot represent either or both of them in a marital dissolution or in any legal action and shall not represent either party during or after the mediation process in any legal matters.  (Standards I G, III A, VI B).  The ABA Standards also provide that the lawyer-mediator is to do all that is practicable in seeing that the parties obtain independent legal counsel.

The mediator shall inform the participants of the need to employ independent legal counsel for advice throughout the mediation process.  The mediator shall inform the participants that the mediator cannot represent either or both of them in a marital dissolution or in any legal action.  (Standard I G)

The mediator cannot act as a lawyer for either party or for them jointly and should make that clear to both parties.  (Standard I H)

Each of the mediation participants should have independent legal counsel before reaching final agreement.  At the beginning of the mediation process, the mediator should inform the participants that each should employ independent legal counsel for advice at the beginning of the process and that the independent legal counsel should be utilized throughout the process and before the participants have reached any accord to which they have made an emotional commitment.  (Standard VI A)

The attorney-mediator's task is to be a neutral and to enable the participants to freely and knowingly negotiate their own agreement. The need for independent legal counsel is stressed in the ABA Standards because counsel assist the participants in separating their emotions from a process in which the participants must have enough information to address such issues as terms of separation, support, division of property, taxes, child custody or visitation, and the consequences of their decisions and agreements.

The parties may nonetheless decline to have independent counsel.  In that event, the attorney-mediator should caution the parties that, in the absence of independent counsel, any agreements reduced to writing and signed by the parties may not be binding on them and may be subject to various defenses in the event of a subsequent dispute.  (Standard VI D)

If the parties decline to have independent legal counsel despite the attorney-mediator's good faith and persistent efforts that they do so, the attorney-mediator may be called upon to prepare either a memorandum of understanding between them or a proposed decree of dissolution of related documentation.  The inquiring attorney asks if it is proper to do so if (1) the parties give informed consent after being advised to seek separate and independent counsel to review such documentation, and (2) the parties are advised that neither is being provided legal advice but only informal suggestions arising through the mediation process.

1. Does ER 2.2 apply to an attorney-mediator during the mediation process, apart from anything being reduced to writing?

ER 2.2 does not apply to an attorney who acts exclusively as a mediator.  See ER 2.2 Cmt.  In the facts presented, the attorney-mediator acts solely as a neutral who does not give advice to or perform services for clients as an attorney.  Nonetheless, a lawyer in such a role may still be subject to applicable codes of ethics for mediators and, of course, remains bound by the Rules of Professional Conduct even when not acting as an attorney.  See this Committee's Opinion No. 93-09 (July 20, 1993) (lawyer-legislator is still bound by the Rules of Professional Conduct); In re Grimble, 157 Ariz. 448, 452, 759 P.2d 594 (1988) (a lawyer acting as a businessman cannot "abandon his professional ethics if he wishes to remain a member of his profession"); In re Pappas, 159 Ariz. 516, 522, 768 P.2d 1161 (1988) ("an attorney may be bound by legal ethics despite the fact that he may have been performing services under another professional license").

2. Does ER 2.2 apply to an attorney-mediator who prepares a non-binding memorandum of understanding?

ER 2.2 does not apply to a lawyer-mediator who prepares a non-binding memorandum of understanding.  Such an action is consistent with the role of a neutral who is not rendering legal services to either or both of the participants to the mediation.  The following steps, however, are essential under the ABA Standards:

1) The attorney-mediator must make full disclosure that, while a licensed attorney, he or she is representing no one and acting solely as a mediator.  The attorney-mediator can act only for the benefit of the parties, and cannot be partial towards one side.

2) The parties should be advised to seek separate and independent counsel to draft or review any document prior to signing it.

3) If the parties decline to have separate counsel, the attorney-mediator must again advise them that they are not being provided legal advice or representation but only assistance in a process whose fairness, integrity and effectiveness are best protected and advanced when the participants have independent counsel.

4) The parties must also be cautioned that in the absence of being advised by independent counsel, any agreements reduced to writing and signed by the parties may not be binding and may be subject to various defenses in the event of a dispute.

This is in keeping with the ABA Standards:

Any memo of understanding or proposed agreement which is prepared in the mediation process should be separately reviewed by independent counsel for each participant before it is signed.  While a mediator cannot insist that each participant have separate counsel, they should be discouraged from signing any agreement which has not been so reviewed.  If the participants, or either of them, choose to proceed without independent counsel, the mediator shall warn them of any risk involved in not being represented, including where appropriate, the possibility that the agreement they submit to a court may be rejected as unreasonable in light of both parties' legal rights or may not be binding on them.  (Standard VI D) (emphasis added).

Under the State of Florida's standards of conduct for mediation, the parties are obligated to reduce any agreement to writing and the mediator must discuss with the participants how to formalize and implement the agreement including ":[c]aus[ing] the terms ... to be memorialized appropriately ...."  However, mediators are not themselves required to write the agreement.  Even if the parties have not come to a full agreement, the mediator may advise the parties to formalize what has been agreed upon and direct the parties as to how they may be able to resolve the remaining issues. The mediator must not knowingly assist in forming an agreement that would be denied judicial enforcement because of fraud, duress, overreaching, the absence of bargaining ability, or unconscionability.  Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida's Mandatory Mediation Experiment, 21 Fla. L. Rev. 703, 716-717 (1994).

The State of Oregon's rule regarding mediation by a lawyer-mediator also is in accord with the view that the parties must be urged to obtain separate counsel.  Or. DR 5-106 (Mediation 106B) states:

(B)  A lawyer serving as a mediator may draft a settlement agreement but must advise and encourage the parties to seek independent legal counsel before executing it.

The attorney-mediator may, under certain circumstances, prepare the memorandum of understanding but only after good faith and persistent efforts to have the parties obtain separate counsel to prepare the document.

3. Does ER 2.2 apply to an attorney-mediator who prepares pleadings that would implement the memorandum of understanding?

To draft pleadings is to practice law.  State Bar of Ariz. v. Ariz. Land Title & Trust Co., 90 Ariz. 76, 95, 366 P.2d 1 (1961).  Thus, to draft pleadings the mediator must be functioning as a lawyer.  However, there is significant disagreement within the Committee as to whether a lawyer-mediator may draft pleadings, for the mediation participants.

It is the view of some members of the Committee that drafting joint documentation, e.g., pleadings, implementing the parties' understanding following a mediation implicates both ER 2.2 and ER 1.7, and that it is inappropriate for a lawyer to ask a husband and wife engaged in mediation for consent to draft such documentation, particularly where the lawyer-mediator previously advised the parties that he would not be able to represent either of them, at least during the mediation and before they achieved any resolution of their dispute.

It is also the view of some members of the Committee that the Rules of Professional Conduct, as they currently exist, do not adequately address lawyers acting as mediators.  Because of this "omission" in the Rules, some commentators have suggested that there should be an additional Ethical Rule specifically covering such circumstances.  See Maute, Public Values and Private Justice:  A Case for Mediator Accountability, 4 Geo. J. Legal Ethics, 503, 511 (1991).

On the other hand, it is the view of other members of the Committee that the lawyer-mediator who is asked to prepare documentation implementing any understandings of the parties following the mediation acts as an intermediary under ER 2.2, and may prepare the necessary documents provided the prescriptions of ER 2.2 are strictly followed.

The Committee's disagreement on the ethical issues presented here is compounded by considerations of public policy (which some members of the Committee believe should be disregarded as beyond the jurisdiction of the Committee) that might favor having one individual, the mediator, completing the process.

As the Committee has not be able to reach a consensus on whether a lawyer-mediator may draft pleadings and other documents implementing understandings reached by participants in the mediation, lawyers are advised to exercise their own professional judgment on this issue.

In summary:

1.  ER 2.2 does not apply to an attorney-mediator who acts exclusively as a neutral for non-client parties in the mediation process.

2.  ER 2.2 does not apply to an attorney-mediator who prepares a non-binding memorandum of understanding if full disclosure is made to the participants that the mediator-attorney is not acting as an attorney, does not and cannot represent them or provide them with legal advice or services, and that they should participate in signing or accepting such documentation only after having independent counsel review the documentation.  If the participants decline to use independent counsel, the attorney-mediator should again caution them that any memorandum of understanding that is not reviewed by independent counsel may be subject to various defenses, thereby threatening the fairness, integrity, and effectiveness of the process.

3.  As there is significant disagreement within the Committee regarding whether a lawyer, who acted as a mediator, may prepare pleadings for the mediation participants, lawyers should use their own professional judgment on this issue.
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[1] Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  State Bar of Arizona 1996