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Draft Dodging? An ethical analysis of mediator-attorney drafting.
By Cara M. Raich
In the Fall edition of this Journal, following the release of an ABA ethics opinion on the subject, Professor Elayne Greenberg’s Ethical Compass column raised the important question “is it permissible for mediator-lawyers to draft Separation Agreements for their unrepresented clients?” This article will continue the dialogue that Professor Greenberg began.
There are at least three pertinent questions: (1) is it permissible for mediator-lawyers to draft separation agreements. (2) if it is permissible, what are best practices for mediator-lawyers engaged in drafting; and (3) are parties competent to ignore the recommendation to seek the advice and counsel of a consulting attorney.
To explore these questions fully, each needs to be examined from two perspectives, through the mediator’s lens and through the lawyer’s lens. The mediator’s perspective requires understanding the applicable sections of the Model Standards of Family and Divorce Mediators, (“Model Standards”) which have been adopted by most if not all the major family and divorce mediation organizations. The mediator-lawyer’s perspective must include the ethics guidelines and case law that govern standards of practice for attorneys because mediators who are lawyers are subject to these rules as well.
Because both sets of ethics apply to mediator-lawyers concurrently, each must be examined to answer these questions thoughtfully and completely.
Before beginning this analysis, it is important to acknowledge that in a perfect world all parties would have consulting attorneys. Many of the concerns raised by Professor Greenberg are resolved when there are attorneys supporting each of the parties, advising them and reviewing-or drafting- the final divorce agreement. Further, the Model Standards require parties to be informed of the benefits of consulting attorneys.
The presence of consulting attorneys is valuable and the preferred standard because their presence ensures the parties are fully informed of the law from their own perspective, they are protected from future challenges to the agreement and all of the conflicts of interest that Professor Greenberg raises as concerns are no longer present.
That being said, the question here, and the question posed by the ABA Ethics Committee opinion on which Professor Greenberg opined, is whether mediator lawyers are permitted to draft separation agreements for parties who choose to waive the right to separate counsel and elect instead to proceed solely with a mediator-lawyer.
Question 1: Is it legally and ethically permissible for mediator-lawyers to draft Separation Agreements?
Mediation Ethics:
Many experienced mediators will act as a mediator and will draft the resulting agreement for parties who waive consulting attorneys, believing that drafting is an integral part, a continuation, of the mediative process. Because the mediator-lawyer has been present throughout, the mediator has the best knowledge of the terms, tone, motivations and context of the agreement made by the parties. The Model Standards and the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance both support this practice.
First, Standard VI, Par. E of the Model Standards states that “with the agreement of the participants, the mediator may document the participants’ resolution of their dispute. The mediator should inform the participants that any agreement should be reviewed by an independent attorney before it is signed.” (Emphasis added)
This section apparently refers to a legal agreement that has been drafted by the mediator and that t will be signed. It does not refer only to a Memorandum of Understanding (“MOU”), which is a summary of issues mediated, since a ‘resolution,’ as contemplated in the Model Standards can be interpreted to include a Separation Agreement, and that document, once signed, is the resolution of a divorce action.
Furthermore, in June of 2010, the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance issued Opinion SODR-2010-1 (“Opinion”) . This Opinion, which prompted Professor Greenberg’s article, contemplated the question of the permissibility of mediator-lawyers drafting agreements. The Opinion provides that the Model Standards contemplate and permit the practice, so long as certain ethical considerations are met. The Opinion states, “the Committee sees no ethical impediment under the Model Standards to the mediator performing a drafting function that he or she is competent to perform by experience or training.”
Legal Ethics/Case Law:
In January of 2001, the New York State Bar Association Committee on Professional Ethics addressed the question “May an attorney engaged in matrimonial mediation draft and file a separation agreement and divorce papers that incorporate terms agreed upon by the parties in the course of the mediation?” The question was answered in the affirmative by Opinion 736 . Opinion 736 confirms that mediators may draft agreements (and actually file the divorce papers as well) subject to certain important restrictions.
Opinion 736 examined the problem of mediator drafting as if it presented a problem of dual representation by a single lawyer, rather than a neutral provider of a legal service. Even from this perspective, the Committee provides: “in short, under the disinterested lawyer test of DR 5-105(C), the lawyer may not represent both spouses unless the lawyer objectively concludes that, in the particular case, the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents…” In other words, a divorce mediator may draft a Separation Agreement for parties, subject to these express conditions (the issues between the parties must be specifically and completely resolved).
Another relevant ethics provision applies to any lawyer acting as a third party neutral, including mediator-attorneys. New York Rules of Professional Conduct Rule 2.4 (Rule 2.4) defines what “third party neutral” means and states: “Service as a third party neutral may include service as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.” (Emphasis added.) Rule 2.4 also instructs attorneys acting as third party neutrals that they must inform, and ensure their clients understand, that the lawyer is not representing them individually.
Professor Greenberg suggests that implicit in Rule 2.4 is a third-party neutral’s obligation to refrain from conduct that might be misconstrued to be lawyering, such as giving “legal advice, providing legal representation and legal drafting.” While it is clear that the rule prohibits a third party neutral lawyer from representing or advising one of the parties, it is not clear at all that the rule prohibits disseminating neutral legal information in the mediation or legal drafting for both parties once they have agreed to such an arrangement.
In fact, the language that permits the neutral lawyer to act in such “other capacity as will enable the lawyer to assist the parties to resolve the matter” implies that drafting is permissible because the resolution of a divorce action is a Separation Agreement. A third party neutral acting in the context of a divorce mediation cannot assist the parties to completely resolve their dispute without discussing some legal issues in the context of the mediation itself and without memorializing the parties’ intentions in the document that represents their agreements, the Separation Agreement.
The question that merits further consideration is the definition of representation. Opinion 736 recognizes that the neutral legal service provider “does not ‘represent’ either party as a client for purposes of the conflict-of-interest rules and other rules governing the lawyer-client relationship.”This recognition applies to matrimonial and family mediation by the express terms of Opinion 736. However, the Opinion reasons that there is a transformation in roles at the point in time at which the Separation Agreement and divorce papers must be filed. At this point, the Opinion states that the lawyer neutral is: “representing two clients who expect to become facial adversaries in a matrimonial litigation, and the representation would be subject to DR 5-105(A) and (C), which address the joint representation of clients with differing interests.” It is, perhaps, this characterization that causes a logical problem – why is the neutral no longer a ‘neutral legal service provider’. Presumably, if all the matters between the parties have been resolved, and an agreement was drafted, the parties do not expect to become ‘facial adversaries’ but rather expect to be filing for an uncontested divorce.
Case Law:
In Levine v. Levine New York’s highest court discussed the propriety of joint representation. In that case, the wife brought an action to set aside a separation agreement as inequitable and unconscionable. The attorney who drafted the agreement had been an acquaintance of the husband and wife for a number of years and agreed to draft it after the parties had reached an agreement on the terms. The trial court found that the attorney remained neutral throughout his involvement with the parties. In its unanimous decision, the Court of Appeals stated “while the potential conflict of interest inherent in such joint representation suggests that the husband and wife should retain separate counsel, the parties have an absolute right to be represented by the same attorney provided there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might vitiate the execution of the agreement.” (Emphasis added.)
In other words, in New York, divorcing couples have the right to elect to use one divorce representative provided they have entered into the relationship with informed consent. It cannot be inferred from Levine that the Court of Appeals meant “joint representation” in a divorce proceeding is joint representation in reaching agreement but only up to the drafting of the Separation Agreement.
In permitting the lawyer to act as a neutral and to mediate divorces, the ethics committees and the Courts have entrusted the mediator-lawyer with getting informed consent to help the parties address, and possibly resolve, the matters between them. It is clear the mediator-lawyer must meet the Levine requirements to be neutral and honest in advising the parties regarding the choice they are making to hire their mediator-lawyer to draft their Separation Agreement and also to ensure that as the drafter, the mediator-lawyer has met the disinterested lawyer test. Once done, however, it is not clear why drafting the agreement should be treated differently than helping parties reach the terms of the agreement in mediation.
Together, the Model Standards, legal ethics, and case law, plainly permit a mediator-attorneys to draft Separation Agreements.
Professor Greenberg also uses for support of her argument that drafting should be avoided by referring to particular practice in New York that should be corrected. Professor Greenberg comments on mediator-lawyers creating a “fiction in which they draft the agreement and pretend to represent one party, while the other party is pro se. Wink! Wink!”
This comment refers to the practice connected with the filing of divorce petitions in court to which Separation Agreements are appended. Parties are asked to sign a waiver stating that the mediator-lawyer, only for the purposes of filing the paperwork, is acting as a representative of one of the parties, the plaintiff. But the waiver makes it clear that the mediator-lawyer was not acting as anyone’s specific representative during the course of the mediation or during the course of drafting the Separation Agreement. Further, the waiver is ethically permissible per New York Rules of Professional Conduct Rule 1.2(c) which states “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.”
This practice should not be necessary; it undermines the good work that mediator-attorneys do for families. The forms and the law still view divorce cases, even uncontested ones, as adversarial matters that must be filed by a “plaintiff”. There is no box on the form for one who prepares such documents to file them as a ‘neutral’ or ‘mediator-lawyer’. The lack of this option sullies a process that was conducted with thought and care to at the very last stage. It flies directly in the face of the Court of Appeals ruling in Levine.
To properly honor both the letter and spirit of the relevant case law, ethics and best practices in the realm of divorce mediation, mediator-lawyers, should have the ability to submit uncontested divorce papers as neutral representatives of the parties. The forms and practice should change. But because the forms are inconsistent with the law and the ethics rules, they do not provide a justification for denying consenting divorcing adults the ability to select a process that they, by all other measures, have a right to choose.
Question Two: What are best practices for mediator-lawyers engaged in drafting?
Given the ethics opinions and case law, the question is not if the mediator-lawyer can draft the parties’ agreement, but rather, how can s/he do it responsibly, ethically and competently?
Professor Greenberg’s article raises a valid concern that terms could be added to a Separation Agreement when transmuting an MOU into the form of a legally binding document or contract. Are there terms that are routinely put into a legal agreement which are not explicitly discussed during divorce mediation sessions? Are there drafting choices that implicate the final resolution but are not apparent to the parties? There are two ways to address this concern; both intrinsic to mediation best practices.
The first is competence. It is clear that before a mediator-lawyer puts a pen to paper to draft a separation agreement, s/he must be competent to do so. Standard II of the Model Standards states “A family mediator shall be qualified by education and training to undertake the mediation”. (Emphasis added.) Further, the parties must be in total and complete agreement on all matters and the lawyer mediator must also comply with Rule 1.7 by obtaining a written waiver confirming the parties’ understanding of the role of the mediator-lawyer as drafter.
Drafting these agreements is complex and nuanced. It cannot be overstated that mediator-lawyers who do not have the requisite drafting skills and legal experience in family law should not be offering this service. Lawyers and mediators have a positive obligation to be knowledgeable about the law and mediative skills; work that falls under the auspices of Rules 1.7 and 2.4 is clearly not exempt from these requirements. A task is not impossible because it is challenging and requires conscious attention; drafting these agreements included.
The second way to address the concerns expressed in Professor Greenberg’s article, is that all terms of the agreement, whether ‘boiler plate’ or ‘legalese;’ whether the choice of a ‘should’ or a ‘shall’ or a ‘must’ or a ‘may;’ the number of days in a default provision etc…must be reviewed by, understood by, and agreed to by each party to a mediation. If there is a decision to be made, mediators must allow the parties to make it. Parties must be made aware of the implications of each section and clause of their Separation Agreement. This is true whether the parties have separate counsel or not, but the practice takes on a greater significance if the parties are not seeking the guidance of separate consulting attorneys.
Question Three: Are Client’s Competent to Waive Their Right to Seek Counsel from a Consulting Attorney?
At the core of Professor Greenberg’s concern is a question of judgment; just because the parties are allowed to select their mediator-lawyer for drafting purposes, should those of us concerned with best practices comply? Professor Greenberg’s position is that we should not, the conflict of interest is too great, the danger is too high and the potential damage to mediation as a profession is too profound.
At base, Professor Greenberg does not believe that parties who are in the midst of the trauma of divorce are competent to waive their right to separate counsel. Given that self-determination is a foundation of mediation, and is at the root of the Court’s holding in Levine, the mediation profession must allow parties to make decisions that feel right to them. Certainly, from the perspective of the Model Standards, parties must be told of the benefits of consulting attorneys, but parties are not required to hire them to work in the mediative process.
From a legal ethics perspective, so long as the potential conflict of interest is waived in writing, parties are permitted to hire the attorney of their choosing. In addition to Levine, there are many different cases in which the Court of Appeals clearly suggests that consenting adults may choose to hire the same attorney for drafting agreements.
Divorcing couples have the right to select one representative in a divorce mediation context and Rules 1.7 and 2.4 explicitly address how the parties must waive the right to separate advisors. The parties’ right to autonomy includes the right to craft their own process. If we respect that right to choose as a profession, we cannot mandate the use of additional representatives in the face of informed consent.
If we ignore the parties’ ability and right to make this decision, we are mandating increased costs and lack of autonomy. In essence, by disallowing mediators to draft agreements we’d be requiring parties to pay twice for drafting, as the mediator would have to draft an MOU and lawyers would have to transmute it into a Separation Agreement.
If we believe that the mediative process belongs to the parties and that they are the best experts in their own lives, it is paternalistic to take the position that parties cannot understand what they are giving up by electing to have one person mediate their divorce and draft the resulting Separation Agreement.
Furthermore, if we believe that parties are not competent to make a decision about consulting attorneys, how are they then competent to make decisions about parenting and finances? Surely these decisions are just as significant and parties make these decisions competently while in conflict.
Is it really a more ethical position for the profession to take to eliminate choice, to suggest the parties are incapable of understanding their own interests? Can we have a professional rule that makes it impossible for parties to avail themselves of rights provided in ethics opinions, case law (and the Constitution)?
Whether or not to provide the service of drafting Separation Agreements for unrepresented parties is ultimately up to individual practitioners. Professor Greenberg is correct that drafting for unrepresented parties is a complex question that requires thoughtful attention. The choice to do so should be considered carefully, as described here. But the final analysis should include a careful assessment of party self-determination and the profession’s responsibility to respect the foundations upon which it is built.
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