Advisory Opinion 2223 Discussion Group

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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 wsba-adr.org network.

Members: 30
Latest Activity: Nov 15

Discussion

Revised Advisory Opinion 2223

Started by Paul W. McVicker. Last reply by Paul W. McVicker Nov 15. 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

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Comment by Kirsten Hytopoulos on March 29, 2014 at 3:06pm

I just attended the panel discussion, and am looking forward to continuing the discussion here. I'd also like to see the discussion culminate in real action.

We owe it to ourselves and to the public to get this decision rescinded and the law clarified or changed. This is an access to justice issue, and the WSBA cannot out of one side of its mouth decry the lack of access to affordable legal services (and the resulting glut of pro se parties overwhelming the courts), while out of the other, purport to be protecting the public by crippling the ability of lawyers to provide affordable, non litigated options.

I agree with John, as he stated below and during the panel discussion today, that this is also a matter of whether or not we are going to be successful in redefining the role of attorney as healer of conflict. My personal goals as a lawyer include not only offering ADR services to my clients, but  working to advance the concepts of Integrative Law throughout the legal community.

I am raising my hand right now as one willing to serve on any committee interested in pursuing the "active" responses to the opinion proposed at today's panel discussion.

Comment by Don P. Desonier on March 25, 2014 at 1:27pm

I have heard Jim Melamed of Mediate.com speak many times on the role of a mediator. Now I may be misstating his exact phrasing, but what struck me was his statement that, in taking to heart the true and authentic interests of the clients, a mediator should adopt as a goal "maximizing/optimizing" the mediation process so as to meet their goals. Now he wasn't speaking about writing up legal docs per se. His approach, however, caused in me a paradigm shift around what I perceived my mediator role to be. I became much more open to exploring areas of conversation, and becoming somewhat "interventionist" so as to empower the parties to expand their pie of options.

 So piggy-backing on John and Rina's recent comments and paraphrasing them: I believe a lawyer/mediator should adopt a holistic presence and mind-set, looking, as John suggests, not only at information that may be of legal significance, but to be conscious and aware of the deeper interests and needs clients bring to the table. That then may involve "maximizing/optimizing" the process by expanding the role of the lawyer/mediator to drafting documents that reflect the clients' informed agreement. As Rina points out, once an agreement is reached, they are no longer in an adversarial process. The clients' interests are "one" - to bring efficient, meaningful, and authentic closure to their mediation journey.

Comment by Rina Goodman on March 16, 2014 at 9:50pm

John, I understand the advisory opinion as addressing a non-adversarial setting in which the attorney has served as a mediator for two parties. It concludes, however, that once all agreements have been reached, the mediator who reflects these agreements in the mandatory forms (Parenting Plan and Order of Child Support, primarily) and property settlement agreement  switches hats and is functioning as an attorney. This to me is a fiction, since not only is the setting not adversarial; now-- finally, the parties' interests are one.

Comment by John Shaffer on March 16, 2014 at 4:08pm

Rina, here's the thorn I feel, or at least a thorn.

I think we are trying to enlarge "legal thinking" beyond the concept of lawyer as warrior in an adversarial system. Advisory Opinion 2223 assumes potential adversarial conflicts of interest which restrict what the mediator can, and should do. I agree to the appropriateness of this opinion in some cases.

Yet, for many of us lawyers also need to embrace the emotions, spirit and context of our clients’ conflicts, as well. In some instances that will require discerning which rules serve one set of client interests but necessarily others.
Advisory Opinion 2223 seems to emphasize potentially adversarial interests, something that ought not necessarily be assumed until, arguably, the lawyer-mediator decision maker weighs all the information the two “clients” bring with them, not just of the facts of legal relevance but also of their deeper interests and desires.

The clients' best interests may require that we draft agreements, open up subjects for discussion, and in other ways work with the tension existing between neutrality and informed consent that might later be judged to violate some ethical rule, yet still serves the clients' best joint and several interests.

The ABA's treatment of the subject matter here discussed (see, as previously cited below) treat the issues in what seems to me to be a more nuanced way, leaving room for speculation as to what the lawyer mediator ought do in the circumstances addressed in Advisory Opinion 2223. Thorny issues, tough calls, with justifiable concern about conflicting interests, including the interests in getting the "case" resolved.

Comment by Rina Goodman on March 14, 2014 at 1:38pm

Welcome to this group, Loretta. Please feel free to raise issues and openly share your thoughts here. Has the Advisory Opinion impacted your practice? What are your particular concerns?

Comment by Loretta S. Story on March 14, 2014 at 9:06am

Thank you Rita for inviting me into this group.  I look forward to reading the ABA opinions Jim posed as well as the panel discussion on the topic at the NW ADR Conference.

Comment by Rina Goodman on March 13, 2014 at 9:11pm

Thank you, John, for sharing these resources. To some people-- on either side of the fence, in fact--the issues are rather cut-and-dry. It sounds as if, from your perspective, there is some degree of complexity. Would you like to share your view of what makes these "thorny" issues?

Comment by John Shaffer on March 13, 2014 at 4:13pm

The ABA ADR Section Ethics Committee twice addressed these thorny issues in 2010.  The extensive analysis and discussion can be found at:

SODR-2010-2, Issued October 18, 2010

SODR-2010-1, Issued June 24, 2010

We are confronting new ethical issues transcending old ways of thinking: Cutting Edge law, for sure.

Comment by Jeff Bean on March 13, 2014 at 11:45am

Jim, anyone can join this network - it's not limited to just ADR Section members. When Rina created this group she sent an invitation to the whole network to join if they're interested, and has since encouraged us all to invite others who are interested. 

All anyone needs to do is sign-up on the network, then ask to join this group.

You can invite anyone not yet on the network to join using the Invite link found in the userbox at the top of the right-hand column.

Comment by Jim Rudd Levy on March 13, 2014 at 11:37am
Thanks, Rina. That NWDR panel is the one that I'm most looking forward to (and dreading at the same time). Question: are people who aren't members of the section or aren't members of this site able to participate in this discussion?
 

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