Utah Court Rules – Published for Comment
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Posted: May 12, 2006
USB RPC01-12. Former Judge, Arbitrator, Mediator or Other Third-Party Neutral. Amend. Amendment in conjunction with changes to RPC 2-4.
USB RPC02-04. Lawyer Serving as Third-Party Neutral. Amend. Provides what a lawyer serving as a mediator may and must do.
I think it improvident to amend Rule 2.4(c) to grant a blanket authorization in all cases. It is a rare case that writing a settlement agreement does not disclose other issues. For example, timing issues are often not appreciated until the document is being drafted.
Moreover, Rule 1.7 not only applies to situations where the clients are “directly adverse” to each other, but it also applies where there is a “significant risk that the representation of one or more the clients will . . . materially limit” the lawyer’s ability to represent all clients. That is an independent reason why the lawyer should not accept a particular representation.
Of course, Rule 1.7 also requires “informed consent, confirmed in writing” when the lawyer decides to proceed because the lawyer “reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”
Thus, I think the better approach is to make Rule 2.4(c) “subject to Rule 1.7” and to provide in the comments that “in many cases” the preparation of the agreement should not be “directly adverse” or create a “significant risk of a material limitation” etc., warning lawyers that either possibility could arise during the course of prepairing the agreement and require a rexamination of the situation at that time. In sum, rather than a blanket authorization, I think it wise to provide a case by case authorization consistent with Rule 1.7.
Sincerely yours,
Charles M. Bennett
I support the proposed changes to USB RPC02-04. In my limited experience with divorce mediation, once the issues are settled the parties do not want to hire an attorney and instead use the on-line court assistance program to complete their divorce. For those clients who insist on using that program instead of legal counsel, this amendment would allow a review of these documents to make sure they have correctly incorporated the modified agreement into the forms and ensure that all issues have been addressed. Overall, this amendment will improve the quality of these type of filings and likely more accurately and quickly move the matter through the courts. The changes will also serve to reduce the expense to the parties and avoid further interaction, delay and possible frustration in completing the divorce.
I strongly support USB RPC02-04, which permits attorney-neutrals to draft pleadings and other documents to memorialize agreements reached between parties to mediation. This enables the parties to retain control of their own cases, expressing their agreements in a direct fashion, while parties who have not been allowed to have their agreements documented by their mediators and who nonetheless do not use their own attorneys are left to their own devices, usually with unintended consequences.
The Council’s ADR committee discussed Rule 2.4 and asked me to convey its inanimous recommendation that the word “written” be inserted prior to the word “consent” in the first line of (c)(3). This requirement that the consent of all parties be memorialized will reduce the liklihood of future claims of unauthorized mediator conduct.
I was delighted to read that this amendment to Rule 2.4 has been proposed. I endorse its approval. I have considerable personal interest in this clarification to the Rules of Professional Conduct.
I am not certain who will be reading these comments, so please excuse me if this is old news. More than 3 years ago, Bill Downes (another mediator/lawyer) and I requested on opinion from the Utah Bar’s Ethics Opinion Committee as to whether it was ethical for a lawyer/mediator, who successfully helped a divorcing couple reach a mutually acceptable agreement in mediation, to then do the legal paperwork for the divorce.
The Ethics Committee considered the issue for nearly two years before issuing their opinion. A majority and a minority opinion were issued. In that opinion #05-03, the majority concluded that the practice should not occur. In essence, they were of the view that it would constitute a violation of Rule 1.7 governing conflicts of interest. The minority opinion thought the practiced should be permitted subject to appropriate disclaimers and waivers. At the time that opinion was issued, there was no Rule 2.4.
In response to that opinion, I did two things. I petitioned the Bar Commission for review of the opinion asking that the minority view be adopted. I also sent a “self reporting” letter to the Office of Professional Conduct informing them that I had in the past engaged in the practice now proscribed by the new opinion and that in my view, the practice was appropriate and accordingly, I intended to continue that practice. My purpose in reporting myself was not to throw down the gauntlet, but to hope that an acceptable solution could be negotiated by all interested parties. It did not work out that way.
The Bar Commission accepted the majority opinion with some minor modification. The minority opinion was left out of the published version.
OPC filed an Notice of Informal Complaint against me. A screening panel hearing was held. I appeared and gave testimony. After holding the matter in abeyance for nearly a month, the screening panel dismissed the complaint without explanation. I can only hope that the screening panel agreed with the merit of my view but a more logical explanation might be due to the fact the between the time the screening panel hearing was scheduled and its actual hearing date, the Supreme Court adopted substantial revisions to the Rules of Professional Conduct, including the adoption the new rule, Rule 2.4 and amendments to Rule 1.7 and 2.12, all of which, at least in my view, would allow the complaint against me to be viewed in a different light from what was being asserted by OPC at the time they initiated the proceedings against me.
During the pendency of the screening panel process I experienced considerable embarrassment and concern since that was my only experience of that nature in 38 years of practice. While I was relieved to have the disciplinary proceeding behind me, I was aware that numerous bodies, the OPC, the Bar Commission, the ADR section of the Bar, the ADR ad hoc committee of the Judicial Council as well as the Supreme Court’s Advisory Committee on the Rules of Professional Conduct, all thought that the matter merited specific attention and decision by the Supreme Court.
I am pleased that the recommendation now under consideration by the Court, would specifically approve this practice. I won’t detail here the reasoning that I presented to the screening panel in support of my position. I only suggest that I probably have more personal history and experience with this practice than any other lawyer in Utah. If the Court is considering any formal hearing on this issue, I would ask that I be invited to participate and respond to questions and provide further information.
I do have two suggestions however. First, I would suggest that this proposed amendment also be referenced in subparagraphs 18 and 19 of Rule 1.7 in the newly amended material so as to further define and permit common representation with the conditions required by that Rule.
Second. While the legal profession may be comfortable with its governance of this service as it relates to lawyers roles, I would suggest that the Court require some minimum training and practice requirements for the mediation portion.
Throughout my own perseverance and advocacy of this practice, I have acknowledged the possibility of abuse if this practice is permitted. While that possibility exists, I feel it is outweighed by the public interest in having a professional person being able to participate in a divorce proceeding without having to align him/herself as an advocate for one person or the other. But since, the possibility of abuse does in fact exist, I feel it would be helpful to create some training and practice guidelines to minimize the abuses and make certain that the lawyers who undertake this practice will also have some skills in the mediation arena. One possible approach might be to require the lawyer to meet the certification requirements for the Federal Court or State Court ADR rosters.
Clearly there are other possible solutions but I think it important that lawyers who engage in this dual role, understand the neutrality requirement imposed on mediators and also understand basic purposes, skills and techniques of the mediation process.
Brian Florence
Re: USBRPC 01.12 and USBRPC 02.04
As the Court is aware, on behalf of the Utah State Bar’s Office of Professional Conduct (“OPC”), I sit on the Court’s Advisory Committee on the Rules of Professional Conduct (“RPC”). The Advisory Committee proposed amendments to USBRPC 01.12 and USBRPC 02.04. I participated in the discussion and vote on these proposed amendments as part of the Committee. I opposed the proposed amendments, but on a vote of ten in favor and five against, the proposed amendment passed and the proposed rule changes were submitted to the Court. Notwithstanding the above and with all due respect to the work of the Committee, because the OPC feels so strongly about the reasons for opposing the proposed rule changes, I felt it was necessary to outline to the Court the OPC’s reasons of opposition as part of the public comment to the proposed changes.
It should be noted that the proponents of the change appear to approach the issues presented from a practitioner’s perspective. The OPC’s perspective is that of a gatekeeper. The OPC recognizes that these perspectives do not always fit hand in glove.
The proposed changes to RPC 1.12 and RPC 2.4 would allow a lawyer-mediator, after a “successfully” mediated resolution, and with the consent of both parties, to represent them as their respective lawyer for the limited purpose of filing the court documents necessary to have the Court accept the stipulated resolution. Without this change, pursuant to the conflict of interest rule, RPC 1.7, and specifically subsection (b)(3), even with the consent of all parties, a lawyer currently could not do this.
Proponents of the changes have essentially given two reasons for adopting them. The first reason is that limited representation of both parties does not eviscerate the attorney/client responsibilities between the lawyer and each party because the parties are no longer adverse: since mediation was successful, all the contested issues have been resolved. The second reason is that since the parties are no longer adverse, as a matter of economics and efficiency, it makes perfect sense to have the lawyer-mediator complete the transaction.
It is the OPC’s viewpoint based on client protection that if a mediator becomes a lawyer for both parties for the purpose of presenting the mediated resolution to a Court, the lawyer’s responsibilities as a lawyer to each party are eviscerated or undercut. The OPC has this view notwithstanding that the representation is limited; notwithstanding that the parties are advised to seek independent legal advice; notwithstanding that the consent (written or otherwise) of all parties is obtained; and notwithstanding that the parties have reached a proposed settlement.
Regarding the limited nature of the representation, the OPC acknowledges that a lawyer may limit her representation to a client. See RPC 1.2(c), RPC 4.2(b) and RPC 4.3 (b). However, nothing in the RPC supports the premise that when an attorney limits her representation, that she also limits her duty of competence (RPC 1.1); that she limits her duty of communication (RPC 1.4); or that she limits her duty with respect to conflicts (RPC 1.7). In other words, a lawyer in a limited representation situation maintains a duty of loyalty to a client as reflected by these rules.
Specifically, the duty of loyalty is implicated because when a lawyer leaves the mediator role and becomes the lawyer for each party, the parties’ expectations change. In this respect, each party as part of the mediation will be told that the lawyer-mediator is not their legal advocate. So the parties cannot expect the lawyer-mediator to advise them on the legal strength of their respective position or expect the lawyer-mediator to tell each party what the other party might have said on the weakness of his position. But if the lawyer-mediator becomes the lawyer for each party, each party will expect competent representation (i.e., legal advice on the solidity of their position concerning the deal pursuant to RPC 1.1); each party will expect complete communication (i.e., full information including information possibly given to the lawyer-mediator in confidence from the other client concerning the factual weakness of their case pursuant to RPC 1.4 and RPC 1.2); and each party will expect the lawyer to be free of conflicts that might affect the representation (i.e., that the lawyer will not be motivated by his personal interest of making sure that the mediated settlement is completed notwithstanding any inequities in the deal in contravention to RPC 1.7).
The OPC disagrees with the argument that the parties are adequately protected if they are advised to seek independent legal advice. A lawyer advising a client to seek independent legal advice on issues that are the very subject of his legal representation is form over substance with respect to ethical safeguards. Specifically, a client even without this direction always has the right to seek a second opinion on the lawyer’s legal work, however, this second opinion does not relieve the initial lawyer’s responsibilities of competence, communication, and conflicts under the ethical rules. Furthermore, since the clients are anticipating that the lawyer is going to be their lawyer for the purpose of completing the deal, why should each client believe that they need to seek independent legal advice? This proposed safeguard becomes more of a “window dressing” requirement than a substantive protection for each client.
The OPC also disagrees with the idea that the parties’ consent removes the ethical problems. The ethical rules do not and should not allow clients to consent away their right to competent legal counsel and their right to be fully informed so they can make adequate decisions. Furthermore, since full communication (i.e., informed consent) is at the base of the waiver of any conflict, it is the OPC’s view that consent to a conflict such as the lawyer’s personal interest in ensuring his mediated resolution has no interference, should also not be allowed.
Regarding the fact that the parties have reached an agreement, it is significant to note that the mediated settlement is a “proposed” settlement. Until the settlement is accepted by a tribunal, the parties are still asserting claims. The tribunal has the discretion to reject the settlement. The OPC is fairly certain that there has been at least one case where a tribunal has had to consider a challenge to a mediated agreement by a party, including the issue whether the mediator should testify regarding the “agreement.”
It is interesting to note that this proposed change originally came up in the context of domestic cases. As I am sure the Court is aware, in an overwhelming number of domestic cases, notwithstanding the initial settlement of issues, the parties often have ongoing issues concerning the adequacy of the alimony, child support, visitation, and property division. This is especially true given that often one of the parties is at a financial disadvantage at the time of the initial settlement. Thus, certainly with respect to domestic matters, a matter does not necessarily “resolve” at the end of a “successful” mediation. Two very experienced domestic practitioners made this point in presentations to the Committee in opposition to the proposed rule change.
With respect to the reasons of economics and efficiency for allowing a lawyer-mediator to complete the deal, this idea in isolation may make good sense. However, in the Court’s previous consideration of a petition to change the ethical rules to allow multi-disciplinary practice (which was proposed to the Court primarily on the basis of efficiency and economics), the Court concluded that a rejection is appropriate when the ethical rule(s) change will result in a breach of the core values of an attorney. In similar fashion, the OPC thinks the Court should reject the proposed lawyer-mediator change to RPC 2.4 and RPC 1.12 because this change would breach the core value of loyalty to the client.
It should be noted that it appears that it is the intention of the proponents of the change to somehow limit the role of the mediator-turned-lawyer to basically that of an “agent” for the narrow purpose of memorializing the agreement and filing documents with the tribunal. Assuming the role can be so limited, the parties are essentially pro se because lawyer-mediators do not have any other legal responsibilities normally associated with that of a lawyer. The OPC suggests that if the Court adopts this change with such a limited role in mind, the Court maybe should also consider amending its authorization to practice law rule (Chapter 13A, Rule 1) to allow non-lawyer mediators to do what is proposed for lawyer-mediators by the change to RPC 2.4. In this way, the parties should not expect any more from a lawyer-mediator who is completing the deal than they would expect from a non-lawyer mediator who is completing the deal. This solution would also satisfy the economics and efficiency rationale for the proposed change.
The OPC made an inquiry of other jurisdictions regarding the issues presented by this proposed change. Of the twenty-one (21) jurisdictions that responded (Colorado, Connecticut, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington) only Oregon appears to specifically allow what is being proposed by the change. As a matter of fact, Utah’s proposed change appears to be based on the language of the Oregon rule. Ten (10) of the jurisdictions have not asserted any position or interpretation regarding the subsequent representation of both parties by a lawyer-mediator (Colorado, Illinois, Minnesota, Montana, Nevada, New Hampshire, North Carolina, Rhode Island, Vermont and Washington); and nine (9) jurisdictions by either rule or interpretation would not allow a mediator-turned-lawyer to represent both parties for the purpose of completing the deal (Connecticut, District of Columbia, Florida, Georgia, Idaho, Indiana, Massachusetts, Missouri and Virginia). Pennsylvania would look to their conflict rule (1.7) to interpret whether they would allow it. Thus, Utah appears to be only one of two states that has explicitly proceeded down this path.
If the rule change is adopted, the OPC forecasts that the party with “buyer’s remorse” concerning the mediated settlement will file a Bar complaint against the mediator-turned-lawyer claiming that the lawyer did not look out for his individual interests. Specifically, he will claim that if the lawyer had told him everything, he would not have gone through with the deal. When this happens, the “efficiency” created by allowing the lawyer-mediator to complete the transaction as lawyer to both parties shifts the burden to the OPC to police the area of alleged inadequate representation that will have been built into the system. The OPC recognizes that there may be a number of reputable lawyer-mediators capable of carrying out their duty of loyalty in this situation. However, because of the difficulties presented and the attractiveness of completing the deal, there are significant numbers who cannot and will not.
In conclusion, the OPC feels that the proposed changes to RPC 2.4 and RPC 1.12 undermine a number of other ethical rules, causing an erosion of the core value of a lawyer’s loyalty to his client. Thus, it is the OPC’s viewpoint that the rule change as proposed would not be in the overall best interests of the Bar, the Courts, or the public. Based on this, the OPC respectfully requests that the Court reject the proposed changes to RPC 2.4 and RPC 1.12.
Billy L. Walker
Senior Counsel
Office of Professional Conduct
Utah State Bar