Bar Counsel Notes: Representation After Serving as a Neutral

Question #2 Several years ago Lawyer served as divorce mediator for two pro se parties. Now one of the two parties, "Roger Sterling," has come back to Lawyer and asked her to draft a prenuptial agreement. Roger's fiancÚ is not the woman he previously divorced. However, Lawyer suspects some of the assets that would be listed in Sterling's prenuptial agreement would be the same assets which were at issue in the prior divorce mediation. Would Lawyer's drafting a prenuptial agreement under the new representation for Roger Sterling be considered a "related matter" under M.R.P.C 2.4(e)(3)?

Answer #2 Rule 2.4(e)(3) provides: "Upon conclusion of the mediation, the lawyer shall not represent any of the parties in the matter that was the subject of the mediation, or in any related matter."

It is Bar Counsel's informal, non-binding opinion that under this scenario, Lawyer's drafting a pre-nuptial agreement for potential client, Roger Sterling, comports with the MRPC. (See Board Regulation 28). Since the assets at issue in the pre-nup agreement are owned by Sterling (having been awarded during the now concluded divorce) it does not appear to be a "substantially related" property issue which Lawyer should be concerned about within the services of the new representation. Moreover, the original "matter" referred to in M.R.C.P. 2.4 is ended and as referenced above, its related property has been fully distributed.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.