| LEO Num | Topics | Summary | Date |
0544
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| A lawyer acting as a mediator in a divorce matter may not represent either party in a later divorce proceeding (even if uncontested). [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.] | 3/1/1984 |
0590
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| A lawyer acting as a mediator may provide "legal information" to clients as long as they understand the lawyer's role and the lawyer does not represent either party in the matter. [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.] | 5/17/1985 |
1684
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| A lawyer who acted as a mediator between an investor and a brokerage firm and who acquired confidential information about the brokerage firm's "internal rules and operations" may not later represent another investor in a lawsuit against the firm (even though the second investor's claims involve different securities and a different registered representative, the information the lawyer learned as a mediator was relevant to the second investor's case).The Code applies to the lawyer acting as a mediator. Although "mere familiarity with a corporation's workings or personality of its representatives is not enough" to disqualify the lawyer from being adverse to a former client, here "the mediator learned information about the internal rules and operations of the Firm having a bearing on the quality of the Firm's supervision of its agents." This means that the matters are "substantially related," and the lawyer/ mediator may not use such confidential information against a former client just as a lawyer could not use it against a former client the lawyer represented as an advocate. Although the brokerage firm may consent to the adversity, "the committee cautions attorneys from relying heavily on client consent because there are circumstances in which the consent may be withdrawn at a later time." [Rule 2.11 governs a lawyer's role as mediator.] [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.] | 7/8/1996 |
0849
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| A lawyer who has served as a mediator may not represent either party in the same matter. | 10/9/1986 |
1759
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| A lawyer who owns a mediation company is "of counsel" to a law firm in which his/her spouse is a partner. After mediation of a domestic dispute, one of the parties asks an associate in the law firm to file for divorce on behalf of that party. The Bar holds that lawyers/mediators may not represent either party after they handle a mediation, even with the clients' consent (overruling earlier LEOs 1684, 590, 544 and 511). Because this specific disqualification applies only to the lawyer/mediator, an associate in the firm would not be disqualified based on the mediator's disqualification. However, the lawyer/mediator's duty of confidentiality arising from the mediation also disqualifies that lawyer, and is imputed to the firm to which the lawyer/mediator is "of counsel" (although client consent can cure this conflict). If there were no connection between the lawyer/mediator and the law firm, lawyers practicing in the firm would not be disqualified from representing the party in the divorce as a result of the spousal relationship to the mediator. [Rule 1.10 now imputes the individual's disqualification to the entire law firm, as explained in Virginia LEO 1826.] | 2/4/2002 |
0511
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| As long as both clients consent, a lawyer may provide "legal information" (as opposed to "legal advice") to both a husband and wife involved in a divorce mediation. [Rule 2.11 deals with lawyers acting as mediators.] [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.] | 4/28/1983 |
0492
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| As long as both the husband and wife consent, a lawyer may draft a child support agreement and give non-partisan advice as long as the lawyer is not negotiating the matter and simply memorializing the agreement already reached. [This LEO was effectively overruled by Rule 2.2(d).] | 3/3/1982 |
0519
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| As long as the clients consent, a lawyer may provide "legal information" (as opposed to advice) to both parties as part of a mediation arrangement or an uncontested divorce; payment by the mediation service to the lawyer would not be per se unethical but the lawyer must be very careful to avoid ethical violations. [Rule 2.11 deals with lawyers acting as mediators.] | 4/28/1983 |
ABA-447
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| Lawyers may ethically participate in a "collaborative law process," which involves adverse parties and their lawyers "commit[ing] to work cooperatively to reach a settlement," and "structur[ing] a mutually acceptable written resolution of all issues without court involvement," which is then "submitted to the court as a final decree." The so-called "four-way" agreement normally includes a provision requiring the lawyers to withdraw from representing their clients if the collaborative effort fails. Such an agreement is an acceptable limitation on the scope of representation under Model Rule 1.2(c), and does not involve a non-waivable conflict. [as the Colorado Bar held in Colorado LEO 115]. (2/24/07)] | 8/9/2007 |
ABA-439
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| Parties and their lawyers often make statements in negotiations that are "less than entirely forthcoming," such as: "understate[ing] their willingness to make concessions to resolve the dispute"; "insist[ing] that it will not agree to resolve a dispute for less than $200, when, in reality, it is willing to accept as little as $150 to put an end to the matter"; overstating confidence in obtaining alternative sources of supply, etc. These statements are considered "posturing" or "puffing," and "must be distinguished from false statements of material fact." For instance, the employer in labor negotiation cannot advise the union negotiator that certain benefits will cost $100 per employee when the lawyer knows that the benefits will only cost $20 per employee. Similarly, a litigant cannot state that documentary evidence will be submitted at trial in support of a defense if the lawyer knows that the documents do not exist. Prosecutors and criminal defense lawyers cannot state that they are aware of an eye witness if that is not true. Lawyers must be careful not to convert statements of position into "false factual representations." For instance, a lawyer can state "that the client does not wish to settle for more than $50," but could not state that a corporation's board has "formally disapproved any settlement in excess of $50" if that were not true. The general Model Rule 8.4(c) ban on dishonest conduct cannot be read to prohibit any misrepresentation, "regardless of the lawyer's state of mind or the triviality of the false statement in question" (or else it would render Model Rule 4.1 superfluous). State bars have punished lawyers for engaging in such misrepresentation as lying about insurance coverage limits, or settling a case without disclosing that lawyer's client has died. In contrast, "statements regarding negotiating goals or willingness to compromise, whether in a civil or criminal context, ordinarily are not considered statements of material fact." The same rules apply to caucused mediation as to other forms of negotiation. A lawyer-mediator is subject to ABA Model Rule 8.4's general prohibition on deceptions, but not to ABA Model Rule 4.1 -- which applies to lawyers' conduct "in the course of representing a client." | 4/12/2006 |
1826
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| Under Rule 2.10(e), a lawyer who acts as a mediator in a dispute may not later represent any party in that dispute (this conflict cannot be cured with consent). Although the conflict is imputed to all the lawyers in the law firm, another lawyer in the firm may represent a party in the dispute with consent. Although a "screen" (which is the proper term for "fire wall," "Chinese wall," etc.) cannot take the place of such consent, it frequently is used as an inducement for obtaining the consent. Lawyers serving together in a mediation firm do not face imputed disqualification, because the mediation firm is not considered a "firm" under Rule 1.10. Lawyers practicing in a law firm and also acting as independent contractors or directors of a mediation firm (and who refer mediation firm clients to their law firm) must consider whether the "personal interest" they have by virtue of participating in the mediation firm creates a conflict under Rule 1.7 -- requiring disclosure and consent. Any lawyer acting as a mediator must also comply with the Virginia statute requiring confidentiality of all mediation material. Lawyers owning an interest in a mediation firm must comply with the ancillary business rules. Lawyers referring cases between law firms and mediation firms must comply with Rule 7.3, which prohibits giving anything of value in return for a recommendation. | 3/28/2006 |