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201901
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RPC 1.7, 1.7(b)(3), 1.12(a), 2.4, 2.4(b), GR 24(a)(2)
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Lawyer-Mediator Preparing Pleadings for Unrepresented Parties in Dissolution
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Issue presented: A lawyer serves as a mediator in resolving issues in a dissolution action. The parties to the dissolution action are both unrepresented. If the parties come to a full resolution of all issues through the mediation, may the lawyer-mediator on behalf of both spouses prepare pleadings that reflect the parties’ agreement?
Discussion:
RPC 2.4 addresses the obligations of a lawyer who is serving in a neutral role, including as a mediator. That rule requires a third-party neutral, such as a mediator, to “inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.” RPC 2.4(b).
RPC 2.4 recognizes that a lawyer serving as a mediator is performing a very different function from a lawyer who is representing a client. A lawyer representing a client advises that client of what is in the client’s best interest and drafts documents with the goal of furthering the client’s interests. In contrast, a lawyer acting as a mediator is not advocating for either party to the mediation but instead attempts to bring the parties to an agreement.
If the parties come to an agreement at a mediation, it is appropriate for the mediator to draft a written confirmation of that agreement with as much or as little specificity as appears warranted under the circumstances. Drafting the confirmation of the parties’ agreement does not mean the mediator is representing one or both parties to the mediation as the mediator is simply recording the terms of the parties’ agreement. When doing so, the lawyer-mediator should be sure each party understands that the mediator is not acting as either party’s lawyer. While not required by RPC 2.4, the best practice is to advise both parties that they may wish to have the agreement reviewed by counsel.
Drafting pleadings is not the same as recording the parties’ oral agreement in written form. Rather, under GR 24(a)(2), drafting pleadings constitutes the practice of law.
However, filling in the blanks on a pleading form does not necessarily constitute the practice of law. For example, in In re Estate of Knowles, 135 Wn.App. 351, 364-365 (2006), the Court of Appeals found that a testator’s son did not engage in the practice of law by filling in blanks in a pre-printed will form when the son merely filled in the form as the testator instructed. The Court found that “[g]enerally, a person begins to practice law by either directly or indirectly (selection of appropriate documents) giving advice” and completing forms did not qualify as the practice of law because the son did not select the will form or advise the testator. Id., 135 Wn.App. at 365. See also In re Disciplinary Proceeding Against Shepard, 169 Wn.2d 697, 710-11, 239 P.3d 1066 (2010) (distinguishing Knowles from nonlawyer selling living trust documents who presented clients with information about the benefits of a living trust and selected which documents the clients should use).
A mediator may complete a pleading form on behalf of both parties to the mediation if the mediator’s role in doing so is similar to the son’s role in Estate of Knowles, where the son was merely recording information on a preprinted form as his father directed. Because filing documents with the court does not constitute the practice of law, a mediator is permitted to file documents regardless of the contents. n.1
On the other hand, if a lawyer-mediator drafted a pleading with customized provisions on behalf of both parties, the mediator would be representing both parties in the same litigation. The conflict of interest rules flatly prohibit a lawyer from representing adverse parties in the same action if the representation involves the assertion of a claim by one client against another client. Rule 1.7(b)(3). Even if the parties have agreed in the mediation to a resolution of the claims, the parties are still adverse in a legal proceeding until the legal proceeding has been dismissed.
If the parties to a dissolution have reached agreement on the matters that were originally in controversy, some may argue that they are no longer asserting claims against one another so a lawyer could represent both in drafting pleadings dictated by the parties’ agreement. But this argument is incompatible with the plain language of Rule 1.7(b)(3) and the first sentence of comment 21: “Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent.” Cmt [21] to Rule 1.7. See also cmts [23]-[25] to Rule 1.7. n.2
RPC 1.12(a) is also relevant to how a lawyer-mediator may proceed after a mediation is completed. It provides, except for an exception not relevant here, that:
a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
By its terms, the rule would permit a former mediator to represent one party to the former mediation provided only that all the other parties were willing and able to give their informed consent. Given that such an arrangement would authorize the lawyer to act and advocate solely on behalf of that party, however, mediation parties excluded from the representation may not be willing to consent to this arrangement. Furthermore, a mediator may not wish to ask for such consent because of a concern that doing so would be inconsistent with the mediator’s prior neutrality.
Significantly, RPC 1.12(a) does not, itself, preclude a former mediator from representing all the parties to the mediation if all the parties provide informed consent confirmed in writing. Such a common representation, however, would be in conflict with the prohibition contained in RPC 1.7(b)(3), discussed above, insofar as the parties continue to be opposing parties in the same litigation. The Committee is of the opinion that the prohibition in RPC 1.7(b)(3) must take precedence over a reading of RPC 1.12 that would permit such a common representation. Thus, unless and until the rules are amended to permit such a common representation of former parties to a mediation who remain in a legal proceeding nominally against one another, such a common representation is precluded despite the fact that the former mediator believes the parties have resolved their differences.
In some circumstances, the prohibition of RPC 1.7(b)(3) may not apply. n.3 Some disputes may be resolved by mediation without recourse to a court proceeding. In other cases, a legal proceeding may be voluntarily dismissed by the parties before the former mediator changes from the role of mediator to that of lawyer representing all the parties to the former mediation. This opinion does not address mediations in which there is no litigation pending.
Footnotes
1. This does not mean a mediator can present the orders to a judge or commissioner, as that would require a notice of appearance on behalf of at least one party.
2. Comments [23] –[25] provide as follows:
[23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.
[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.
[25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.
3. Comment [17] to RPC 1.7, for example, states that RPC 1.7(b)(3) “does not preclude a lawyer's multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a ‘tribunal’ under Rule 1.0A(m)),” but “such representation may be precluded by” RPC 1.7(b)(1). This comment addresses a lawyer who is representing more than one client at a mediation. It does not address a lawyer who is serving as a mediator.
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