Can lawyer-mediator’s write up legal documents?

In 2012, the WSBA Rules of Professional Conduct Committee issued Advisory Opinion #2223, concluding that lawyers acting as a mediator may not ethically write up a Property Settlement Agreement, Order of Child Support, or Parenting Plan for unrepresented parties. The Opinion does not address a mediator's Memorandum of Understanding. 

The full opinion is below and here is a direct link to the opinion on the WSBA site. Please feel free to express any thoughts in the comments section below.

Warm regards to all,
Mark Baumann

Advisory Opinion: 2223
Year Issued: 2012
RPC(s): RPC 1.7, 2.4, GR 24(a), GR24 (b)(4)
Subject: Lawyer-Mediator Preparing Legal Documents for Unrepresented Parties

This opinion concerns:

(1) Whether a lawyer who is acting as a neutral mediator pursuant to RPC 2.4 may prepare a Property Settlement Agreement, Order of Child Support, or Parenting Plan for unrepresented parties; and

(2) Whether a lawyer may be retained as a neutral mediator solely for the purpose of preparing a Property Settlement Agreement, Order of Child Support, and/or Parenting Plan for unrepresented parties, after agreements between the parties on the substance were reached with the assistance of a non-lawyer mediator.

The inquirer states that the preparation of the Property Settlement Agreement, Order of Child Support, and Parenting Plans at issue is not a matter of checking boxes on standardized forms, but frequently involves the drafting of complex and customized provisions using original language and choices that impact the party’s legal and property rights. These inquiries are discussed jointly as the discussion applies equally to both inquiries.

GR 24 defines the practice of law as “the application of legal principles and judgment with regard to the circumstances or objectives of persons which require the knowledge and skill of a person trained in law.” GR 24(a). GR 24(a)(1-2) states that the practice of law includes giving advice and drafting documents that affect the rights and responsibilities of an entity or person. GR 24(b)(4) states that whether or not they are the practice of law, a lawyer may serve “in a neutral capacity as a mediator [or] arbitrator.” Thus the question presented is whether preparing the documents described causes an attorney-mediator to step out of the neutral mediator role and into a representation role.

A lawyer acts 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.” RPC 2.4. Where a lawyer acts as a mediator for unrepresented parties the potential for confusion arises regarding the lawyer’s role:

Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer's service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process.

RPC 2.4, Comment 23. This inquiry also implicates RPC 1.7. In a dissolution matter, the parties’ interests may be directly in conflict, thus creating a conflict of interest for any attorney involved in the dual representation of the parties. Texas ethics opinion number 583 discusses the questions raised when an attorney-mediator prepares pleadings for unrepresented parties in a dissolution, and finds that the preparation of the pleadings constitutes the representation of the parties:

Although acting as a mediator with respect to a divorce does not constitute the practice of law, the preparation of documents to implement an agreement for divorce reached in a mediation clearly involves the provision of legal services by a lawyer/mediator…[T]he preparation of documents for both otherwise unrepresented parties in a divorce to effect an agreed settlement would constitute representation of both parties in the divorce litigation.

This Texas opinion prohibits the discussed practice pursuant to Texas Rule of Professional Conduct 1.06(a), which bars a lawyer from representing “opposing parties to the same litigation.” Similarly, comment 23 to RPC 1.7 finds the conflict raised by the “representation of opposing parties in the same litigation” nonconsentable. Comment 15 to RPC 1.7 states generally that “under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation.”

Other courts have raised concerns about a lawyer’s ability to provide competent and diligent representation when representing both parties in a family law case, as discussed in Oregon ethics opinion number 2005-86. See In re McKee, 316 Or 114, 849 P2d 509 (1993) (lawyer disciplined for representing husband and wife as copetitioners in divorce; concurring opinion suggests that consent usually will not cure conflict of interest between copetitioners in divorce); In re Bryant, 12 DB Rptr 69 (1998) (lawyer who merely “put into legal language” dissolution agreement worked out previously by husband and wife nonetheless had actual conflict of interest when minor children and substantial assets were involved, despite lawyer’s recommendation that both clients seek separate counsel); In re Taub, 7 DB Rptr 77 (1993) (lawyer disciplined for representing both husband and wife in divorce after wife expressed doubts regarding settlement to lawyer; lawyer’s claim that he did not represent either party and provided only scrivener services was rejected).

Consequently, 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.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Rules of Professional Conduct Committee. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law than the meaning of the Rules of Professional Conduct. Advisory Opinions are based upon facts of the inquiry as presented to the committee.

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