THIS OPINION WAS WITHDRAWN BY RI-351
ISSUED APRIL 29, 2011

CI-911

June, 1983

SYLLABUS

1. An attorney may represent both parties in a divorce action only if all of the following factors are present:
   1. Neither party is contesting the divorce;
   2. There is an insignificant amount of property to be divided between the parties;
   3. There are no minor children from the marriage;
   4. Neither party is requesting alimony; and
   5. Both parties have consented in writing to the dual representation after being apprised of its inherent risks and after the attorney has recommended the parties obtain separate counsel.
2. An attorney may participate in the mediation of a divorce as long as the issues raised by the dispute are not so difficult or complex that they cannot be fairly resolved unless each party received advice from separate counsel, and the attorney is satisfied that both parties to the divorce can intelligently and prudently consent to such mediation. In addition the attorney must:
   1. Inform the parties that the lawyer represents neither of them and that the lawyer will not necessarily be protecting the individual interests;
   2. Apprise both parties of relevant law only in the presence of both;
   3. Apprise the parties that a privilege of confidentiality may not exist;
   4. Not charge a contingent fee or base the fee on the outcome of the mediation process;
   5. Strongly recommend that the parties seek independent review of any agreement drafted by the lawyer; and
   6. Represent neither party in any dispute which might arise between the parties in the future.
3. An attorney participating in the mediation process must perform any duties relating to the resolution of issues concerning property, taxation, inheritances, alimony and other legal issues. Any assumption of such duties by nonlawyers must be brought to the attention of the State Bar.
4. An attorney participating in the mediation process may not share legal fees with nonlawyers nor allow any interference with the lawyer's independent professional judgment by nonlawyers associated with the mediation process.

References: MCPR DR 3-101(A), DR 3-102, DR 3-103, Canon 5, DR 5-105; Op 85.

TEXT

1. Where a husband and wife come to a lawyer for a divorce and say that they just want one lawyer, may the lawyer represent both parties or must there be a second lawyer involved in the case?
2. when two parties want a lawyer to mediate, may the lawyer represent either of the parties?
3. May a nonlawyer mediator be involved in issues concerning property, taxation, inheritances, alimony, and other issues that evolve from the divorce?

I. ONLY IN RARE INSTANCES MAY AN ATTORNEY REPRESENT BOTH PARTIES IN A DIVORCE

MCPR DR 5-105 provides:

"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected, by his representation of another client, except to the extent permitted under DR 5-105(C).

"(C) In the situation covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."

If a married couple approaches an attorney requesting aid in obtaining a divorce, the parties are in essence asking the attorney to dissolve a contract since either one or both of the parties no longer wish to be bound by its terms. Like any other contract, the marriage contract has created rights and responsibilities for both parties. In order for an attorney to be justified in the representation of both parties to such a divorce, it is required that it be obvious the attorney can adequately determine and protect the rights and responsibilities of both parties without being detrimental to the interests of either of them. Such a task is usually impossible. The only instance in which representation of both parties would be ethical is if all of the following factors are present.

1. Neither party is contesting the divorce;
2. There is an insignificant amount of property to be divided between the parties;
3. There are no minor children from the marriage;
4. Neither party is requesting alimony; and
5. Both parties have consented in writing to the dual representation after being apprised of its inherent risks and after the attorney has recommended the parties obtain separate counsel.

As the Committee pointed out in Op 85, when any of the elements set forth above are absent, neither the parties nor the attorney have the right to waive the requirement that each be represented by independent counsel. Op 85 reasoned that the state has an interest in the fair resolution of disputes relating to relative responsibilities as well as an interest in the safeguarding of vested rights, both at issue in the divorce proceeding. The Committee stated:

"Canon 6 of the Canons of Professional Ethics forbids a lawyer from representing adverse or conflicting interests. It expressly forbids a lawyer from entering into any relationship where his duty to one conflicts with his duty to another. The Committee believes that this Canon has particular application to a divorce case which involves the marital relation. A divorce proceeding may involve the custody of minor children, settlement of dower and property rights, and the fixing of temporary and permanent alimony, all of which are of interest to the state and not merely the husband and wife. From time immemorial the state has maintained an interest in the marital status, its origin, its continuance and its dissolution. Our Michigan Supreme Court said in Weiser v. Wayne Circuit Judge, 247 Mich 52 (1929):

'There are three parties to every divorce proceeding--the husband, the wife, and the state.'

"Hence a dissolution of the marital relationship requires more than the mere acquiescence or consent of the husband and wife. The right of the state must be recognized and safeguarded in every divorce proceeding . . . . It would make a mockery of divorce procedure if an attorney could act for both husband and wife and ignore the public interest."

II. AN ATTORNEY MAY ACT AS A MEDIATOR IN A DIVORCE ACTION IN CERTAIN CIRCUMSTANCES.

ABA Model Code of Professional Responsibility EC 6-20 states that lawyers may serve as "impartial arbitrators or mediators" but does not define or set parameters for those roles. The proposed ABA Model Rules of Professional Conduct prescribe the circumstances in which a lawyer acting as an intermediary meets ethical standards in Model Rule 2.2. Model Rule 2.2(a) sets forth the following conditions:

(1) the lawyer must disclose to each client the implications of the common representation, including the advantages and risks involved, and must obtain each client's consent to the common representation;

(2) the lawyer must reasonably believe that the matter can be resolved on terms compatible with the clients' best interests, that each client can make informed decisions in the matter, and that there is little risk of prejudice to the interests of any client if the contemplated resolution is unsuccessful; and

(3) the lawyer can act impartially and without improper effect on other responsibilities a lawyer has to any of the clients.

Model Rule 2.2(b) also requires that the lawyer acting as intermediary explain fully to each client the decisions to be made and the consideration relevant to making them. Model Rule 2.2(c) mandates that a lawyer shall withdraw from an intermediary role if any client so requests, if the conditions under paragraph (a) cannot be met, or if in light of subsequent events, the lawyer should reasonably know that a mutually advantageous resolution cannot be achieved.

Based on the analysis set forth, it is clear that an attorney may not represent both parties to a divorce unless there is no risk of the development of significant disputes. However, it is permissible for an attorney to participate in non-adversarial roles for the purpose of dispute resolution so long as the attorney represents neither party. A lawyer should participate in such mediation only if the lawyer is certain that the parties can prudently agree to a settlement of all legal issues without the advice of separate legal counsel and that both parties can intelligently consent to all waivers which are involved in the mediation process. There could be instances where participation in mediation would be unethical, i.e., where the issues raised by a particular divorce dispute are so difficult or complex that they cannot be fairly resolved unless each party receives advice from separate counsel. If the lawyer is satisfied that the situation is one in which the parties can intelligently and prudently consent to mediation and the use of an impartial legal advisor, then the lawyer may undertake those roles providing the lawyer observes certain rules.

By ensuring that both parties' participation in the mediation process is both prudent and intelligent, the attorney is safeguarding the state's right to a fair resolution of the determination of the parties' relative rights and responsibilities.

If the attorney participates in such mediation the attorney's role is to serve as a legal information source and as an independent legal advisor. The attorney would be required to clarify to the parties that the lawyer represents neither of them and that the lawyer will not necessarily be protecting individual interests. Because the attorney is serving as an information source, neither party can be apprised of the law in the absence of the other. Moreover, the clients must be aware that the confidentiality which normally attaches to the attorney-client relationship would not automatically exist.

Obviously, because the proceeding involves a divorce, under no circumstances can a mediator charge a contingency fee, or in any other manner base a fee on the outcome of the mediation process. Furthermore, the attorney must strongly recommend that each party obtain independent counsel to ensure the protection of each. If a legal document is drafted, the attorney again must strongly advise that the parties seek an independent review by legal counsel and recommend that neither party sign such agreement until it has been independently reviewed. Finally, if a later proceeding arises involving a dispute between the parties, the attorney can represent neither party.

III. THE MEDIATING ATTORNEY CANNOT AID NONLAWYERS IN THE PRACTICE OF LAW, SHARE LEGAL FEES WITH NONLAWYERS, NOR ALLOW INTERFERENCE WITH THE ATTORNEY'S INDEPENDENT PROFESSIONAL JUDGMENT BY NONLAWYERS ASSOCIATED WITH THE MEDIATION PROCESS

As is the case when an attorney assumes any legal duties, the attorney cannot delegate those duties to anyone untrained and/or unlicensed to practice law. Again in view of the attorney as an information source and/or independent legal advisor, it is necessary that any resolution of issues relating to property, taxation, inheritances, alimony and any other legal issues which might arise, remain the duty of the attorney. Other disputes which might arise in the mediation process, e.g., the determination of the best interests of children involved for establishing custody and visitation rights and responsibilities, are actually better handled by professionals trained in the behavioral and/or social sciences.

Attorneys have always dealt with other professionals for purposes of best servicing client's needs, e.g., investigators, accountants, etc., therefore working with such professionals should not present a novel problem for determining which areas are attorney's duties. MCPR DR 3-101(A) states:

"A lawyer shall not aid a nonlawyer in the unauthorized practice of law."

It would of course remain the duty of the attorney to bring any activity on the part of nonlawyer mediators which the attorney believes to be the unauthorized practice of law to the attention of the appropriate authorities.

Furthermore, while it is unnecessary to set forth the precise administrative structure that a mediation clinic should take, any attorney associating with such a clinic should be aware of the mandates of MCPR DR 3-102 which provides that a lawyer shall not share legal fees with a nonlawyer. In order to avoid a violation of the Rule, professional tasks performed by the mediation clinic should be specifically designated and clients billed separately, i.e., the fees due from the attorney should be clearly set forth on a per hour basis separate from those fees to be collected for the services of other nonlawyer professionals.

Finally, MCPR DR 3-103 provides:

"A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consists of the practice of law."

The policy embodied in MCPR DR 3-103 is the avoidance of a situation in which the attorney's activities, including his decision-making while fulfilling legal duties, would be directed or otherwise influenced by a nonlawyer resulting in a dilution of loyalty owed to the client under MCPR Canon 5. Former Canon of Professional Ethics 35 elaborated as follows:

"The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer. A lawyer's responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer's relation to his client should be personal, and the responsibility should be direct to the client."

The simplest way for an attorney to avoid potential problems relating to interferences with his independent professional judgment, whether subtle or obvious, is to establish a system with mediation clinics whereby it is the attorney who pays other professionals for their participation in the mediation process rather than vice versa.