MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2007-19
Attorney-mediators preparing legal documents for unrepresented litigants
Your inquiry of May 24, 2007, has been considered by the Committee on Ethics of the MarylandState Bar Association and I have been assigned to respond on its behalf.
You ask the Committee to answer four questions1 all having their genesis in the relationships and actions of people involved in mediation. The gist of the issue involves the question of whether an attorney-mediator can draft a settlement agreement for unrepresented parties in resolution of a dispute the mediator has been asked to resolve. The short answer to that question is that an attorney-mediator may not draft a settlement agreement on behalf of unrepresented parties to the mediation.
In 2005, the Court of Appeals adopted a number of changes to the Maryland Lawyers Rules of Professional Conduct. Those changes originated from changes to the ABA’s model rules through the ABA’s Ethics 2000 effort. Some of the changes sought to address mediation. In Maryland, the court adopted Rule 2.4 and changed Rule 1.7 to address issues associated with mediation. Rule 2.4 specifically provides guidance to attorneys who act as third party neutrals, including mediators.2 In comments to the Rule, the drafters specifically address the potential that a mediator will be asked to become the attorney for a participant following mediation. That comment provides simply that Rule 1.12 addresses the conflicts that may arise for both the lawyer and the lawyer’s firm should the lawyer undertake such representation.3 Rule 1.12 prohibits an attorney mediator from representing any party to the mediation without the consent of all.4
Rule 1.7 of the Maryland Lawyer’s Rules of Professional Conduct (Rules) proscribes a lawyer representing a person where a conflict of interest exists. That conflict may arise between the lawyer’s interests and the client’s or between the interests of other of the lawyer’s clients, both past and present. Comments to Rule 1.7 address the issue of when common representation of multiple clients might be permissible and Comment 28 specifically guides against representing people whose interests are basically antagonistic, as might be expected in a divorce, as opposed to a business transaction.5 Where mediation involves two unrepresented parties and the mediator seeks to draft legally binding documents or legal pleadings that affect the interests of each party, the mediator practices law6 and is bound by the Rules. Being bound, the mediator cannot represent both parties in a dispute. See: Hale v. Hale, 74 Md. App. 555, cert. denied, 313 Md. 30 (1988).7 This does not mean that the mediator cannot draft a document that memorializes the understanding that was reached by the parties. As the Utah Ethics Committee noted:
It is common for mediators to assist the parties in preparing a term sheet or a memorandum of understanding to set forth the essential terms of the mediated resolution of the dispute. This activity is undertaken as a mediator, not as the lawyer for either party. We see no problem with a lawyer-mediator engaging in this task.
When the task changes from memorializing the understanding to drafting legally binding documents, the mediator’s role as scrivener changes to legal practitioner.8 Historically, drafting pleadings and contracts for third parties has constituted the practice of law in Maryland. Section 10-101(h) of the Business Occupations & Professions Article, Md. Code Ann, provides that the term “practice of law” includes “preparing or helping in the preparation of any form or documents that is filed in a court or affects a case that is or may be filed in a court” and “giving advice about a case that is or may be filed in a court.” See also Attorney Grievance Commission v. Hallman, 343 Md. 390, 681 A.2d 510 (1996). The Committee believes that neither the cloak of mediation, nor the passage of time can transform these functions into the lawful acts of mere tradespeople, rather than licensed professionals.
This issue is not one without difference of opinion. Other states that have considered the issue under the Model Rules9 have reached conflicting conclusions. Utah, North Carolina, Virginia and New Hampshire,10 all reached the same conclusion that we do. New York, Connecticut and Massachusetts reach the opposite conclusion.11 We believe the Utah Committee’s analysis to be best under Maryland law.12
The Committee hopes it has addressed your inquiry and thanks you for your interest. Our opinions are available on line at www.msba.org.
1 1. Are the preparation and filing [in court] of [a record of agreement] (which contains motions for the appointment of counsel for the children and for a continuance on page 3) the acts of an attorney engaging in the practice of law?
2. If the preparation and filing of a document on behalf of others in this legal format are deemed to be practicing law, are these acts permitted by the Rules of Professional Conduct? Has the attorney attempted to represent opposing parties in violation of Rule 1.7? See, Ethics Opinions 1992-17 and 1978-25.
3. How does this situation differ from an attorney who violates the Rules by drafting a separation agreement after consulting with both parties?
4. What steps, if any, would the Committee advise attorney-mediators to take to avoid violations of the Rules of Professional Conduct, particularly Rule 1.7?
2 Rule 2.4 (a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.
3 [4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer’s law firm are addressed in Rule 1.12.
4 a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
5 [28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties’ mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.
6 While you correctly note that in the past the Committee refused to opine on the issue of whether the practice of law includes the drafting of a settlement agreement or pleading to effect a resolution in a mediation, our present opinion is based not on our on view regarding what constitutes the practice of law, but on the definition contained in the Maryland code as explicated by the Maryland Court of Appeals.
7 Both the Connecticut and New York opinions noted hereafter rely on case law that allows an attorney to represent both parties to a settlement agreement in a divorce. The New York opinion (fn. 4, supra.) stresses that: “Because the “disinterested lawyer” test cannot easily be met, the lawyer-mediator may not prepare and file a settlement agreement and divorce papers after the conclusion of the mediation as a matter of regular practice on behalf of spouses who are otherwise unrepresented.” As Maryland courts have specifically found this dual representation impermissible, those opinions are not persuasive.
8 We have, in the past, addressed the question of the applicability of the Rules of Professional Conduct to mediators. For example, in Ethics Docket 03-02, we concluded that a mediator performing court-ordered domestic mediation pursuant to Title 17 of the Maryland Rules, operates within a court-defined “safe harbor,” and is not, under the definition supplied in Title 17, engaged in the practice of law. We cautioned, however, that a mediator who went beyond the activities prescribed in Title 17 risked violations stemming from unauthorized practice or, alternatively, violations of the Rules of Professional Conduct. Also, see: Roger C. Wolf, THE GRAY ZONE: MEDIATION AND THE UNAUTHORIZED PRACTICE OF LAW
36-AUG Md. B.J. 40 (2003)
9 Oregon considered the issue, but under its Disciplinary Rules, which differ from Maryland’s Rules. See: Oregon State Bar Association Board of Governors, Formal Opinion 1991-101. Indeed, in Oregon its Disciplinary Rules specifically allow a mediator to draft an agreement as a result of the mediation, provided the mediator advises the parties to seek independent legal advice:
In the Disciplinary Rules of Oregon, DR 5-106 provides:
* * *
(B) A lawyer serving as a mediator may draft a settlement agreement but must advise and encourage the parties to seek independent legal advice before executing it.
10 Utah Eth. Op. 05-03 (Sept. 30, 2005); N.C. Ethics Op. 286 (Jan. 14, 1981); Va. Ethics Op. 511 (Sept. 8, 1983); N.H. Bar Assn. Ethics Comm. Formal Op. 1989-90115 (July 25, 1990).
11 New York State Bar Assn. Op. 736 (Jan. 3, 2001); Conn. Bar Assoc. Formal Opinion No. 35 (1988); Mass. Bar Assn. Ethics Op. 85- 3 (Dec. 31, 1985).
12 For an interesting discussion of the applicability of the Rules to mediation see:The New Maryland Rules of Professional Conduct and Mediation: Perplexing Questions Answered and Perplexing Questions That Remain. Robert Rubinson, 36 U. Balt. L.F. 1 (2005).
REFERENCES:
- Rule 1.7
- Rule 1.12
- Rule 2.4
- Hale v. Hale, 74 Md. App. 555, cert. denied, 313 Md. 30 (1988)
- Oregon State Bar Association Board of Governors, Formal Opinion 1991-101
- Utah Eth. Op. 05-03 (Sept. 30, 2005);
- N.C. Ethics Op. 286 (Jan. 14, 1981);
- Va. Ethics Op. 511 (Sep t. 8, 1983);
- N.H. Bar Assn. Ethics Comm. Formal Op. 1989-90115 (July 25, 1990).
- New York State Bar Assn. Op. 736 (Jan. 3, 2001);
- Conn. Bar Assoc. Formal Opinion No. 35 (1988);
- The New Maryland Rules of Professional Conduct and Mediation: Perplexing Questions Answered and Perplexing Questions That Remain. Robert Rubinson, 36 U. Balt. L.F. 1 (2005)ass. Bar Assn. Ethics Op. 85- 3 (Dec. 31, 1985).
Roger C. Wolf, THE GRAY ZONE: MEDIATION AND THE UNAUTHORIZED PRACTICE OF LAW, 36-AUG Md. B.J. 40 (2003)
ASSIGNED TO: Charles W. Thompson, Jr., Esquire
DATE ASSIGNED: May 24, 2007
DATE DISTRIBUTED: July 28, 2007, September9, 2007, October 24, 2007
DATE FINAL: November 5, 2007