Opinion #142. Disclosure by Mediator of "Of Counsel" Affiliation

Issued by the Professional Ethics Commission

Date Issued: August 19, 1994

QUESTION

An attorney proposes to enter into a business relationship with two other attorneys (hereinafter the “Mediation Group”) to provide alternate dispute resolution services as a mediator, while continuing an “of counsel” affiliation with the law firm with which the attorney formerly practiced (hereinafter “the Law Firm”). The “of counsel” affiliation will be disclosed on the stationery of the Law Firm. The lawyer will have no “monetary stake” in the firm. The lawyer submitted the following questions:

  1. Will the lawyer need to do a conflicts check with the Law Firm each time clients seek his services or the services of his new business?

  2. What disclosures should or may be made?

  3. Would the answers be different if the lawyer were not “of counsel” to the Law Firm?

  4. Does it make a difference that the lawyer is married to one of the partners in the Law Firm?

OPINION

The questions posed require consideration of the relationship between the imputed disqualification rule, MBR 3.4(b)(3)(i), familial disqualification, MBR 3.4(f)(3), and the recently adopted mediation rule, MBR 3.4(h). MBR 3.4(b)(3)(i) prohibits a lawyer from undertaking representation of a client whenever the MBR would prohibit any lawyer affiliated with the lawyer or the Law Firm from undertaking the same representation. Familial disqualification is a special and limited case of conflict arising from an interest of the lawyer.

1. The Conflicts Check.

Being “of counsel” to the Law Firm, the lawyer is “affiliated with” it and all lawyers who are members or employees of the Law Firm for the purposes of M.B.R. 3.4(b)(1). Since mediation is not representation of a client, however, [MBR 3.4(h)(2)] and since the imputed disqualification rule speaks of declining or commencing “representation”, that rule will not disqualify a lawyer from acting as mediator whenever a conflicts check would reveal representation of a party by the Law Firm. Note that the converse is not true; the Law Firm would be disqualified from representation that is prohibited by the mediation rule, MBR 3.4(h), such as representing a party to mediation “in court or in the matter under mediation or any related matter.” [MBR 3.4(h)(3)] Accordingly, a pre-mediation conflicts check will at a minimum serve to put the Law Firm on notice when its counsel contemplates mediation of a dispute involving one or more of its clients.

The mediation rule supplies an additional reason for a conflicts check with the firm. Although imputed disqualification may not reach mediation, the mediation rule requires both the fact of impartiality [MBA 3.4(h)(3)] and disclosure of “any interest or relationship” likely to affect impartiality or create an appearance of bias. [MBR 3.4(h)(1)] Past or present representation of a party to mediation, or a person adverse to a party to mediation, by the Law Firm could create an appearance of bias although the mediator is satisfied that in reality there will be no loss of impartiality. The appearance of bias could affect even a mediation conducted by a member of the Mediation Group who is not affiliated with the Law Firm. Thus the requirements of MBR 3.4(h)(1) and (3) cannot be fulfilled unless the Mediation Group determines, through a “conflicts check” or otherwise, whether any party to a proposed mediation has a past or present connection with the Law Firm.

MBR 3.4(h)(3) provides, in part:
[w]hile acting as mediator, the lawyer may not represent any of the parties in court or in the matter under mediation or any related matter.
MBR 3.4(h)(5) provides, in part:
Upon withdrawal, or 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.

These are absolute bars that preclude the lawyer-mediator from such representation without regard to client consent. As explained above, the vicarious disqualification rule does apply to this representation. Thus the Law Firm will be disqualified whenever its “of counsel” lawyer would be disqualified. We conclude that the vicarious disqualification rule also disqualifies the lawyer and the Law Firm whenever another member of the Mediation Group would be disqualified by either of the quoted rules. The affiliation required for disqualification under MBR 3.4(b)(3)(i) is not by its terms strictly limited to organizations engaged in the practice of law.[1] Moreover, the requirements for impartiality set forth in the mediation rule persuade us that MBR 3.4(b)(3)(i) should apply among attorney members of the Mediation Group. It would thus appear necessary for the Law Firm to institute reverse conflict checks whenever it proposes to undertake a new matter or client to determine whether the matter is or was the subject of, or the client is a party to, a mediation conducted by the Mediation Group.

2. The Disclosure.

If no participant in the mediation has any present or past connection with the Law Firm as client or opponent, disclosure of the “of counsel” affiliation is not required. If any participant has such a connection, as client, opponent of a client or otherwise, the pertinent facts should be disclosed. Informed consent of the parties will permit the lawyer to act as mediator, unless it would not be reasonable in the circumstances to believe that the mediation can be undertaken impartially. [MBR 3.4(h)(3)] Accordingly, whenever the Mediation Group is aware of such a connection, a boilerplate disclosure of the “of counsel” affiliation, without more, is not sufficient. Since consent must be informed, the disclosure must include all facts required to judge the extent and consequences of any possible effect on the mediator’s impartiality. Whether legally mandated mediation can proceed in the face of a connection between one of the parties and the Law Firm will depend on the statute and regulations, if any, that create and control the legal mandate; that aspect of the question is beyond the jurisdiction of the Commission.

The mediation rule further requires explanation of the “limits of the lawyer’s role as mediator”. We conclude that the mediator should disclose the possibility of future disqualification of the Law Firm when a party to the mediation is a present or previous client of the Law Firm and therefore might harbor an expectation of subsequent representation in the matter submitted to mediation. We also conclude that the disclosure is not required unless a party to the mediation is a prior client of the Law Firm, but such a disclosure would generally be appropriate both to explain fully the “limits of the lawyer’s role as mediator” and because mediation could be corrupted unintentionally by the mid-course attempt of one of the parties to employ the Law Firm in the same or a related matter.[2]

3. What if the lawyer were not “of counsel”?

These answers would be significantly different if the lawyer were not “of counsel” to the Law Firm. The requirement for disclosure of “any interest or relationship likely to affect the lawyer’s impartiality or that might create an appearance of partiality or bias” [MBR 3.4(h)(1)] would still require that the mediator disclose the previous connection to the Law Firm if any party to a proposed mediation has been a client or opponent of a client of the Law Firm while the lawyer-mediator was affiliated with it. For the same reason the former affiliation should also be disclosed by the mediator when the Law Firm has referred a party to mediation, or represents a party in a mediation conducted by the Mediation Group, at least for a reasonable cooling off period, regardless whether the party was a client when the mediator was part of the Law Firm. The other disclosures detailed above will not be required, and as a result, conflict checks to determine whether they are required need not be made. Since mediation is not representation of a client and is not adverse to any of the parties to mediation, the successive representation conflict rule [MBR 3.4(d)] will have no independent application to any case in which the lawyer-mediator or other members of the Mediation Group are asked to mediate a dispute involving former clients of the Law Firm.

4. Spousal disqualification?

The lawyer’s marital affiliation with a partner in the Law Firm would appear to make little difference in the disclosures and no difference in the conflict checks required if the lawyer continues “of counsel”. If the “of counsel” connection did not exist, marital affiliation alone would be a factor that could threaten an appearance of bias in a case in which one of the parties to a mediation is or has been represented or opposed by the spouse of the mediator. It is doubtful that the effect would invariably extend to parties represented or opposed by a partner of the mediator’s spouse; accordingly, we cannot say that MBR 3.4(h) requires automatic disclosure in all such cases, although it may require disclosure in matters of particular importance to the Law Firm.

EPILOGUE

Since the touchstone of this analysis must be the likelihood of an effect on impartiality or an appearance of partiality, the answers given should be considered rough rules of thumb. The need for disclosure in any given case could be affected by the passage of time since the event to be disclosed, the importance of the event to the parties involved, and many other factors.


FOOTNOTES

[1] We do not mean to suggest that the imputed disqualification rule will necessarily apply whenever more than one lawyer is employed or engaged in the same enterprise.

[2] Of course, the lawyer “may” make any additional disclosures desired so long as they do not lead to misunderstanding of any fact relevant to judging the mediator’s ability to be impartial.


Enduring Ethics Opinion