I hear you, Jeff.  Yet, for me, the problem with this advisory opinion is that it tries to answer all "cases" for all time, and ends up, in my opinion, narrowly legalistic and inadequate to its task. You rightfully point out the opinion says the clients' interests  may be in direct conflict.  But GR 24 requires that they "be directly adverse" or that 'there is a significant risk" that a lawyer's representation of one client will materially limit his or her responsibilities to another client.  The "may be" language in the opinion is not enough, in my judgment, to warrant the conclusion we cannot ever draft documents.  I agree with the thrust of the opinion that in some cases it is likely we should not, but I think that's a judgment call on the lawyer's part dependent on the circumstances.  In this regard, it is important to me that GR 24 first defines the practice of law as "the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s)."  That is exactly what I do when I help my mediation clients assess what subjects to discuss and how to proceed, and in select cases, when I help them memorialize their agreement.  Further, GR 24 excepts and excludes from its definition “whether or not they constitute the practice of law,” and specifically permits, “serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.” I'll defer discussing "neutrality" and how that term also, in my judgment, interacts with assuring a fair process, noting for now that our  professional rules also require us to help assure access to justice, serve as advisors and counselors weighing "other considerations such as moral economic, social and political factors, that may be relevant to the client's situation" (RPC 2.1),  and allow us to work with clients who give "informed consent" in writing to an otherwise "concurrent conflict of interest." (RPC 1.7)  I personally find the ABA's commentary on these subjects which I hyperlinked in an earlier comment below more nuanced and helpful than the Texas authority the advisory opinion relies on.  The authoritative discussion at the recent Northwest ADR Conference at the UW Law School was also helpful to me and the other state opinions and our legal literature is filled with commentary and opinions that conflict with what has been written in Advisory Opinion 2223. I conclude for this moment and until our state Supreme Court weighs in on the topic, that sometimes I should defer and refer to outside counsel, and sometimes not, reserving the right and judgment to say "it depends" when I'm asked if and when I should scribe or draft mediation agreements.

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