Advisory Opinion 2223 Discussion Group


Advisory Opinion 2223 Discussion Group

Information and discussion on WSBA Advisory Opinion 2223: Lawyer-Mediator Preparing Legal Documents for Unrepresented Parties. An open public forum on the ramifications of this advisory opinion. Open to any registered member of the network.

Members: 30
Latest Activity: Nov 15, 2018


Revised Advisory Opinion 2223

Started by Paul W. McVicker. Last reply by Paul W. McVicker Nov 15, 2018. 3 Replies

Proposed revised 2223The WSBA Committee on Professional Ethics has released a proposed draft opinion to replace Advisory Opinion 2223. …Continue

Reconsideration of AO2223

Started by Paul W. McVicker. Last reply by Roy N. Martin Feb 10, 2017. 11 Replies

We now have the opportunity to address a reconsideration of AO2223. The WSBA Committee on Professional Ethics will be considering a request to review Advisory Opinion 2223 (…Continue

Scrivener Dilemma

Started by John Shaffer Apr 12, 2014. 0 Replies

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.…Continue

Comment Wall


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Comment by Jeff Bean on January 8, 2015 at 12:38pm

I thought we would have heard some response to the Washington Law Review article by now. *Sound of crickets.*

Ms Shin's solution is for the mediator, after the agreement is reached, to then get written waiver and consent from both parties to jointly represent them and advise them as their lawyer in drafting documents.

Does that work for you folks?

Comment by Estera Gordon on July 23, 2014 at 7:51am

Hi everyone.  I just noticed I was invited to this group.  (Thanks, Rina)  The discussion is interesting, and I agree that this advisory opinion is ill-advised.  I don't do family mediation, but I suspect the same analysis would be applied to commercial or community or estate and probate mediation - at least where parties are unrepresented.  So if anyone has a plan to try to get the bar to rethink this, I'll do what I can to help.

Comment by Jeff Bean on April 14, 2014 at 11:21am

John's showing the way of great online community leadership here by starting a discussion. Thanks, John!

As various issues and topics come up, it will be helpful to have different discussions on them. The group's comment wall here can only really handle one conversation at a time and can quickly get unwieldy. Instead, the group discussions feature will help the group explore and keep track of more ideas as more people add their voices and the communication becomes more complex. 

Anyone in the group can start a new discussion. Have a thought on a new subject? Something you want to discuss? Start a discussion!

Comment by Jeff Bean on April 14, 2014 at 11:14am

John, I'm simply articulating my understanding of the rationale of Advisory Opinion 2223. I'm not defending it. Steve asked a good question, so I articulated the opinion's rationale to provide my answer of how I avoid the problem.

If I have any follow-up on the interesting points you raise, I'll continue that conversation with you in the discussion you've started.

Comment by John Shaffer on April 12, 2014 at 3:57pm

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.

Comment by Debra Synovec on April 4, 2014 at 7:27am
Thanks for inviting me to the group Rina. And thanks for putting together the panel regarding this topic at the ADR conference.
Comment by Jeff Bean on April 1, 2014 at 2:06pm

Feel free to disagree with the analysis, but don't make the mistake that it's mine.

The opinion is clear that the lawyer/mediator's preparation of documents with "'complex and customized provisions using original language and choices' as part of a mediation for unrepresented parties goes beyond the role of a mediator, and is instead the representation of the parties." It concludes that violates RPC 1.7.

The opinion is also clear that it considers the parties to a dissolution - even after reaching agreement - to have interests that may be in direct conflict. As sympathetic as I am to the several commenters here that strongly disagree, their argument runs straight at the opinion's analysis of both GR 24 and RPC 1.7: that while agreements between litigants are being reduced to a document affecting their legal rights, their interests remain adverse. The defenders of this rationale will be able to point to the direct support for this assertion in Comment [7] to RPC 1.7, which specifically identifies that even parties to transactional matters have interests that are directly adverse. Arguing that two people getting divorced are somehow less adverse than two business partners forming a new business will be a tough row to hoe.

In this group's effort to rescind the opinion or change the rules, it will be worth considering what will most likely be effective. I agree that the opinion and the rules themselves reflect older attitudes. Yet there will be staunch defenders of those attitudes; calling them and their ideas out-of-date and inflexible is unlikely to create a productive discussion. If instead, we seek first to have a full and charitable understanding of the rationale of the opinion and the rules, we may be more effective at presenting newer ideas and bringing about the change we seek.

Comment by Rina Goodman on April 1, 2014 at 10:46am

I disagree with Jeff's analysis. The attorney acting as mediator is not engaged in the practice of law during the mediation. When the legal documents are drafted, however, the attorney mediator is so engaged... but here is the difficulty: The drafters of the advisory opinion conclude that this is the impermissible representation of parties with adverse interests. When could the interests of the parties be more in concert with each other than when they've reached agreement on all matters (whether or not they every were "contested")? This is a simplification of the arguments against the drafters' interpretation of the professional rules of conduct-- and there are more that were made by the panelists this past Saturday that were more cogent. Further, the problem isn't with the advisory opinion alone but with the rules in general and the inflexible, old-school attitudes of the bar. Finally, as Lesley Ann Grove pointed out (I don't have the applicable rules at hand right now), DRC mediators are required to draft agreements that the parties sign-- a curious contradiction!

Comment by Jeff Bean on March 31, 2014 at 7:53pm

Steve, here's how I deal with it. I don't practice in family, so it's easier for me to implement this solution.

The rationale of the problem identified by Op 2223 is that the activity of "[s]election, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s)" constitutes the practice of law. GR 24.

With a lawyer acting as mediator, this activity is the practice of law which takes them out of the neutral, non-representative role of a mediator. So they started the mediation as a mediator, which is not the provision of legal services (actually not the practice of law, but a law-related service) and places them in a representational role and the practice of law. This legal representation of two parties with adverse interests is a a joint representation which constitutes a conflict of interest under RPC 1.7.

I would agree this rationale also suggests a problem for DRC's and other non-lawyer mediators. The same analysis implies that the non-lawyer engaged in the selection and drafting of documents is now engaged in the unauthorized practice of law. Informal opinions are limited to their facts and that's not what they were dealing with, yet DRCs should be concerned and involved in a long-term solution.

So my approach is simply not to write-up parties' agreements. Not even CR2A's like some commercial mediators do. Again, in my work it's easier than with others.

I do believe I can write-up what I understand the parties agreed to. That's not an agreement - it's not signed by them, it's not binding, and so it does not "affect the legal rights of an entity or person(s)." GR 24. It's just my writing which is as non-effectual as the paper it's printed on.

What I write is not an agreement itself because it's not a contract, it's not binding on the parties, so it doesn't affect the legal rights of the parties and therefore does not constitute the practice of law.

So I do write memoranda synopsizing what I understand to be their agreements. I could even say "you agreed to enter into a CR2A stipulation with the following terms." But it won't have signature lines and I don't offer or suggest that they should convert it into a legal agreement. I also strongly encourage them to retain counsel to draft their binding settlement agreement. And that's where having a long rolodex with consulting attorneys who understand collaborative dispute resolution to refer to serves me well!

Comment by Steve Olsen on March 31, 2014 at 10:24am

I agree with Kirsten that the opinion should be rescinded.

However, until that happens, I am curious as to how other mediators are complying with the opinion. I am especially concerned about this language in the opinion:

"because the preparation of “complex and customized provisions using original language and choices” as part of a mediation for unrepresented parties goes beyond the role of a mediator, and is instead the representation of the parties, the practices raised in this inquiry violate RPC 1.7 and are prohibited."

Does this mean that, as a mediator, I can't draw up an agreement resulting from the mediation that the parties can use to implement their agreement by drafting their own pleadings or hire an attorney to draft them?

If so, how do you commemorate what the parties agreed to in mediation? This also raises concerns in a DRC setting. Is writing up the mediated agreement a violation? Can non-attorney mediators write up the agreement - but not mediators who happen to be lawyers? Even if the parties don't know the mediator is a lawyer?


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