Opinion #71. Law Firm Offering Divorce Mediation Services

Issued by the Professional Ethics Commission

Date Issued: May 7, 1986

Question

The Commission has been asked whether a law firm may offer and advertise the service of consulting with both parties to a divorce proceeding, reviewing their case in depth, and preparing a proposed divorce settlement agreement. The inquiring firm has submitted a draft advertisement describing the service. In it the parties are told that the firm cannot act as attorneys for either party but will work with attorneys for the parties throughout the settlement process. The parties are also told that they will be urged to review any proposed settlement agreement with their attorneys. It is made clear that in requesting the service the parties are not agreeing to accept the results.

Opinion

  1. The Proposed Mediation Service.

The proposed service would not violate the Bar Rules if undertaken on the basis suggested by the advertisement and if certain additional precautions are observed. The inquiring firm proposes to offer, in effect, a private divorce mediation service. If neither party is or has been a client, or becomes a client during the mediation process, the conflict of interest rules will not be involved. Nothing in the other bar rules suggests that there would be any impropriety in offering two potentially contending parties the service of recommending a settlement.

It must, however, be clear that the firm is not representing either one of the parties and is not using confidences imparted by one against the other or allowing its judgment on the recommended settlement to be affected by a confidence previously imparted to it. This critical factor could become confused if, for example, the firm previously represented one or both of the parties. In that case, for purposes of Bar Rule 3.4(e) we conclude that the position of a mediator would be employment “adverse” to the party who is a former client and would be employment “adverse” to both if both parties are former clients of the firm. Accordingly, if the firm represented either the family or one of the parties before the decision to seek a divorce, compliance with Rule 3.4(e) would appear to be required in almost all cases, and the firm must be sure that the consent of both parties is fully informed. Since a divorce touches potentially all interests of the parties, when one or both of them has been represented by the firm in other matters, we think it would be an extremely rare case in which such representation could continue during mediation, even on matters not apparently connected to the divorce, without risking violation of Rule 3.4(c).

A lawyer serving as a mediator between clients was expressly approved by EC 5‑20 of the former ABA Code of Professional Responsibility, which provided:

EC 5‑20. A lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationships. After a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved.

Rule 2.2 of the present Model Rules of Professional Conduct contains a somewhat more detailed prescription for mediating between clients and is stated to be inapplicable to mediation unless clients are involved. In general, however, both EC 5‑20 and Rule 2.2 confirm the warnings expressed above.

  1. The Proposed Advertisement[1]

Although the Commission does not wish to discourage experiments in private dispute resolution, it has concluded that a few statements in the advertisement should be amended or qualified to insure that no misleading impressions are created. Bar Rule 3.9 cautions broadly against statements that are “likely to cause” misunderstanding, statements that are “likely to create an unjustified expectation,” and statements that are misleading in all the circumstances through material omissions. The standard thus set requires a careful and strictly objective choice of advertising language. In a few respects the draft advertisement submitted for purposes of this opinion falls somewhat short.

First, the ad begins by saying “divorce too often is a needlessly painful and expensive process leading to contested hearings in 20% of most divorce cases filed. Out of this we are providing a new and unique service.” (emphasis in original) Leaving aside the ambiguity of “20% of most,” the phrase “new and unique” falls somewhat short of accuracy as a description of a private version of the existing court mediation service. Second, the ad notes that court mediation is “mandatory” only if there are minor children and no agreement. The implication to the inexperienced or casual reader is that it is unavailable in other cases. That is not a correct statement of the mediation statute, which does not so restrict the use of court mediators.

Third, the advertisement contains a parenthetical reference to the firm’s “considerable legal experience” as “over 41 lawyer years, 15 in family law.” This statement relies on the combined experience of lawyers in the firm. It can read, however, as suggesting either that the firm itself has been in existence 41 years, or that one of the members has that length of experience, and in either case could confuse a reader. It is hard to see what useful information the statement communicates, since it would describe with equal accuracy a firm of 41 lawyers, each of whom had one year of experience.

Fourth, the advertisement states “we will work with both spouses, something your divorce lawyer is not allowed to do.” This is not a complete statement of the Bar Rules involved. The attorney for one party may work directly with an unrepresented opponent and may work with a party who is represented through that party’s attorney. In either case, settlement negotiations would be not only allowed but expected. Of course an attorney must be careful to comply with Bar Rule 3.6(m) “Avoiding Misreliance,” but the implication in the advertisement that a divorce lawyer is somehow disabled from working with the other party to achieve a mutually acceptable result could tend to mislead the reader.

Subject to the precautions noted above and appropriate modification of the advertisement, the proposed service and advertisement do not, in our opinion, violate any of the Bar Rules.

AD

Divorce Settlement Service

________________________ & _______________________, P. A.

Attorneys at Law

Our experience as lawyers reveals divorce too often is a needlessly painful and expensive process leading to contested hearings in 20% of most divorce cases filed. Out of this we are providing a new and unique service we hope will lessen the pain and expense and prove useful to both spouses.

If you are considering a divorce, we will meet with you and your spouse and review your case in depth after which we will present you with a written,

Divorce Settlement Agreement

which is the product of our consultation, our considerable legal experience (over 41 lawyer years, 15 in family law), our recent experience with the court mediation service, which is only mandatory if there are minor children and no agreement, and our opinion of a fair arrangement for both of you.

We cannot act as your lawyers in the divorce, but will work with your lawyers throughout the settlement process. The difference is we will work with both spouses, something your divorce lawyer is not allowed to do. Our goal is to insure there are two winners, not just one.

Of course, you will each be urged to take the opportunity to review any proposed settlement agreement with your attorney(s) for advice. If agreed, the agreement would become the basis for a future court divorce decree. If agreement cannot be reached, you will be referred to your lawyers for litigation.

Please make an appointment to discuss this service with us by calling our local office. There is no charge or obligation for the time to discuss this new and unique service with you. After you decide to proceed, fees will be set with you at a rate you can afford.

(name of law firm, address, and telephone number)


Footnote

[1] A copy of the proposed advertisement is attached to this opinion as Exhibit A.


Enduring Ethics Opinion

Opinion 71 [December 2016]