April 29, 2011
A lawyer who acts as a mediator in a family law matter cannot draft all of the instruments, including pleadings, necessary to consummate an agreement reached by the parties through mediation while representing to both parties that the lawyer is acting only as a mediator and not as a lawyer representing either party. Drafting all of the instruments necessary to effectuate the divorce, including all pleadings, constitutes the performance and delivery of legal services to such an extent that the lawyer who provides all of those services is no longer serving merely as a third-party neutral. Assuming arguendo that a client-lawyer relationship is formed where a lawyer prepares all of the documentation necessary to effectuate a divorce, customizing the terms to the parties' circumstances and agreement, doing so at the behest of opposing parties in a litigation matter constitutes a conflict of interest under MRPC 1.7(a). Under these circumstances, seeking to abrogate the responsibilities of a lawyer to a client through a prospective agreement that either asserts the lawyer does not represent either party or requires the parties to acknowledge that the lawyer represents neither party violates MRPC 1.8(h)(1) by constructively seeking to prospectively limit the lawyer's liability for malpractice.
References: MRPC 1.7; 1.8(h)(1); 1.12; 2.2; 2.4; 3.3; 4.1.; RI-235; RI-256; RI-278; RI-347; withdraws CI-911.
Two unaffiliated Michigan lawyers ask whether a lawyer who acts as a mediator in a family law matter can draft all of the instruments necessary to consummate an agreement reached by the parties through mediation, including pleadings, while representing to both parties that the lawyer is acting only as a mediator and not as a lawyer representing either party. Lawyer A proposes to conduct his practice in this fashion and Lawyer B indicates he's been handling his practice this way for some time, requiring both parties seeking a divorce to sign a written agreement that acknowledges the lawyer is a mediator and not a lawyer for either party. Lawyer B conducts the mediation and, if there is agreement, drafts all of the documents incident to the divorce without listing himself as an attorney of record for either party. As both lawyers premise their questions on the concept that they are each acting "as a mediator, and not an attorney," MRPC 2.2 is inapplicable as it addresses a lawyer acting as an "intermediary between clients." Emphasis added.
On January 1, 2011, Michigan Rule of Professional Conduct 2.4 came into effect, which provides:
(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 must 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 must explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.
Commentary to the Rule further provides the following:
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. Lawyers who represent clients in alternative dispute resolution are governed by the Michigan Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration, the lawyer's duty of candor is governed by Rule 3.3. Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1.
A key question is whether the drafting of all of the instruments necessary to effectuate the divorce, including all pleadings, constitutes the performance and delivery of legal services to such an extent that the lawyer who provides all of those services is no longer serving merely as a third-party neutral, has thereby taken on a representative role, and is subject to all of the Rules of Professional Conduct that pertain to the client-lawyer relationship in her dealings with the parties.
Opinion RI-278 answers that question affirmatively when it states that a lawyer mediator is not per se prohibited from preparing a document memorializing an agreement that comes out of the mediation, but notes that the preparation of pleadings necessary to implement a memorandum of understanding that comes out of a mediation would be construed as the delivery of legal services and, as such, invokes MRPC 1.7, 2.2, and "other ethics duties." The lawyer mediator is admonished to assure that unrepresented parties have an "opportunity to obtain independent legal counsel for purposes of evaluating any tentative agreement" and to make clear to the participants that the lawyer "cannot and does not represent either party to the mediation." Opinion RI-278 does not sanction an arrangement that involves the lawyer's entering into an agreement with both parties to draft all of the documents incident to the divorce in addition to handling the mediation. The assertion that the drafting of an agreement is not per se prohibited intimates that there are circumstances when undertaking the drafting of instruments would be prohibited.
Two additional opinions are referenced in RI-278 – RI-235 and RI-256. One discusses the ability of a lawyer to subsequently represent one of the parties. The other emphasizes the neutrality required in performing the function of mediator. Opinion RI-235 prohibits a lawyer who has acted as a partisan of a party in a multi-member special mediation panel from thereafter representing the party in subsequent litigation on the same or a substantially related matter unless all parties consent. Opinion RI-256 discusses the duties of a neutral arbitrator or mediator, concluding that a lawyer functioning in either capacity should assure that the parties understand the lawyer's role, which does not include providing advice or counsel to either party.
By use of the term "anyone," MRPC 1.12, referenced in the commentary to MRPC 2.4, arguably discusses representation of a single person in connection with a matter in which the lawyer previously participated as a "judge or other adjudicative officer, arbitrator, or law clerk or such a person" in requiring that all parties consent after consultation beforehand. Simultaneous representation of both parties would be governed by MRPC 1.7.
The two parties to a divorce are inherently adverse as one brings the action and the other defends against it. Paragraph (a) of MRPC 1.7 forbids a lawyer from representing a client where there is direct adversity to another client unless two conditions are met. First, the lawyer must reasonably believe that the representation will not adversely affect the relationship with the other client. Second, each client must consent after consultation. Commentary to the rule makes clear that a lawyer cannot reasonably believe that representing one party will not adversely affect the relationship with the other client who is the opposing party by stating, "Paragraph (a) prohibits representation of opposing parties in litigation."
Clearly, then, a lawyer cannot undertake at the outset to represent both parties in a divorce. To the extent that CI-911, an opinion written when the Michigan Code of Professional Responsibility remained in force, has been construed as authority to the contrary, it is withdrawn.
Accepting that the drafting of all documents necessary to effectuate a divorce, incorporating provisions that memorialize the specific terms of an agreement by the parties as to all issues incident to the divorce, is providing legal services to the parties, what effect would an agreement between the drafting lawyer and both parties have in either disclaiming that the lawyer represents either party or seeking each party's agreement that the lawyer represents neither of them? Could such an agreement successfully abrogate any obligations a lawyer would have with a client, such as competence, diligence, loyalty, and advocacy, or would it be construed as a constructive attempt to prospectively limit the lawyer's liability to a client for malpractice, in violation of MRPC 1.8(h)(1)? And if, by drafting documents incorporating provisions both parties to the divorce have agreed to, the lawyer is in effect representing the interests of both parties simultaneously, does she thereby violate MRPC 1.7(a)?
In RI-347, the Committee opined that a lawyer can ethically unbundle legal services to assist a pro se litigant and that a properly informed client may voluntarily contract for limited legal services. In that circumstance, a lawyer is permitted to provide unbundled legal services; but he or she retains all of the professional responsibility that would exist in the case of ordinary services. Because both Lawyer A and Lawyer B seek to reject the characterization of their relationship with the divorcing parties as that of lawyer and client, an agreement contemplating both mediation services and the preparation of customized legal documents while maintaining the lawyer represents neither party is not appropriately described as an agreement to unbundle legal services.
Instead, what Lawyer B seeks to do is blend into a single agreement the role of a third-party neutral, whose function is to assist persons who are not clients "to reach a resolution of a dispute or other matter that has arisen between them," and the more traditional role of a lawyer, which includes drafting all of the legal documents necessary to obtain the relief sought by the parties in securing a divorce, dividing assets and liabilities, and, in applicable cases, providing for custody, visitation, and support, in a manner that is customized to the parties' specific circumstances and agreement. The latter role is completely inconsistent with the former, as evidenced by the limitations placed upon a lawyer's ability to shift from one role to the other.
Where both parties to the divorce are otherwise unrepresented, the risk is great that each will conclude his or her interests are being pursued and protected by the lawyer who is drafting all of the documents based upon information each has provided. The Michigan Rules of Professional Conduct do not articulate how a client-lawyer relationship is established, but a lawyer who creates the circumstance where a person could reasonably conclude that the lawyer is pursuing his or her legal objectives by performing services normally performed by a lawyer for a client runs the risk that a court could conclude a client-lawyer relationship has been established. This could be so even where a written agreement suggests that each party confer with a separate lawyer of their own choosing who should review the terms of any agreement made because as a practical matter it is unlikely in most cases that either party, each of whom has come to the lawyer presumably to spare the expense of hiring a separate lawyer, will hire a separate lawyer to review the agreement. Assuming arguendo that a client-lawyer relationship is formed where a lawyer prepares all of the documentation necessary to effectuate a divorce and does so by customizing the terms to the parties' circumstances and agreement, doing so at the behest of opposing parties in a litigation matter constitutes a conflict of interest under MRPC 1.7(a). Under these circumstances, seeking to abrogate the responsibilities of a lawyer to a client through a prospective agreement that either asserts the lawyer does not represent either party or requires the parties to acknowledge that the lawyer represents neither party violates MRPC 1.8(h)(1) by constructively seeking to prospectively limit the lawyer's liability for malpractice.
This opinion does not address whether a lawyer serving as a third-party neutral can ethically thereafter take on the representation of one of the parties to the divorce other than to note MRPC 2.4's reference to MRPC 1.12 for conflicts analysis in sorting out that question.
 Assuming arguendo that both parties are constructively "clients" by virtue of the lawyer's delivery of legal services to them based upon their directions as to the content of their agreement, both the language of the rule and the commentary accompanying MRPC 2.2 lead to the conclusion that the role of intermediary is not appropriate for opposing parties in litigation; rather, it can be appropriate for persons with potentially differing interests where the situation involves creating a relationship rather than terminating one.
 Commentary to MRPC 2.4 provides, "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 to arise for both the individual lawyer and the lawyer's law firm are addressed in Rule 1.12."