When a lawyer serves as a court-program mediator, what conflicts check must the lawyer run, and must the results be disclosed to the parties?

Plain-English summary

Opinion 276 (adopted November 19, 1997) addressed a law firm asked to supply lawyers as mediators in the D.C. Superior Court's Alternative Dispute Resolution program. The mediators are assigned by the court rather than chosen by the parties, do not represent either side, and agree to keep confidential the information they receive in the mediation. The firm found a full conflicts check (covering the parties plus the officers, directors, stockholders, affiliates, spouses, and partners it screens for its own clients) extremely burdensome, and asked whether a narrower check, limited to whether the firm currently represents any party to the mediation or any client adverse to a party, would satisfy the rules.

The committee explained that the rules primarily govern duties to clients, not to non-client parties in a mediation, but that Rule 1.7(b)(4) requires a lawyer to avoid conflicts arising from responsibilities to a third party. Because a mediator typically becomes privy to confidential information about the parties' positions, and would be barred by her promise of confidentiality from using anything helpful or harmful to her firm's existing clients, the committee concluded that some conflicts check is required before serving as a mediator: the lawyer must determine whether she or her firm represents any party to the mediation, or any client whose interests are adverse to a party.

The committee held that a check of corporate constituents is not normally required. Under Rule 1.13, a lawyer who represents an organization represents the entity and not its directors, officers, shareholders, or employees, so the risk of acquiring unusable confidential information through the mediation affects only the client organization, not its non-client constituents. The committee noted an exception, drawn from Comments [13] to [15] of Rule 1.7, where the structure of the client or the reasonable expectations of its constituents broadens the representation, in which case a broader check would be required. Finally, the committee turned to Rule 8.4(c), which bars dishonesty and misrepresentation. To avoid misrepresenting her neutral status, a lawyer-mediator must disclose the results of the conflicts check to the parties where she or her firm represents or is adverse to a party, though Rule 8.4 does not require investigating relationships of which the lawyer is unaware. Where confidentiality obligations to the firm's own clients prevent disclosing the results, the committee said the lawyer's only option is to withdraw as mediator without comment.

Currency note

This opinion was issued in 1997, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer-mediator have to run a conflicts check at all?

A: Yes. The committee concluded that Rule 1.7 requires a conflicts check before serving as a mediator, to ensure that service as a neutral does not compromise the lawyer's judgment for existing clients.

Q: How far does the required check extend?

A: The committee concluded the check must cover the immediate parties to the mediation, meaning whether the lawyer or firm represents any party or any client adverse to a party, but need not normally reach the officers, directors, or stockholders of affiliated corporate entities.

Q: Why are corporate constituents usually excluded?

A: The committee relied on Rule 1.13, under which a lawyer represents the organization and not its individual constituents, so the conflict concern affects only the client entity; it noted a broader check is required where the client's structure or constituents' expectations expand the representation.

Q: Must the lawyer-mediator tell the parties about a conflict?

A: Yes, where one exists. Under Rule 8.4(c), the committee concluded the lawyer must disclose the results of the conflicts check to the parties if she or her firm represents or is adverse to a party; if confidentiality prevents disclosure, she must withdraw without comment.

Background and rules framework

The opinion interpreted D.C. Rule 1.7 (conflicts arising from responsibilities to a third party) and Rule 8.4(c) (no dishonesty or misrepresentation), with Rule 1.13 framing whether corporate constituents must be checked, and Rule 2.2 (intermediary) distinguished because it applies only when a lawyer mediates between the lawyer's own clients. The committee declined to read the AAA/ABA arbitration and mediation codes into the D.C. rules.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7(b)(4) / Model Rule 1.7 (conflicts from duties to a third party)
• D.C. RPC 8.4(c) / Model Rule 8.4 (dishonesty; misrepresentation of neutral status)
• D.C. RPC 1.13, 2.2 / Model Rules 1.13, 2.2 (organization as client; intermediary)

Cases:

• Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968), arbitrator disclosure of relationships
• Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994), arbitrator's duty to investigate conflicts

Other authority cited:

• AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes; AAA Commercial Mediation Rules; NY Code of Professional Responsibility DR 5-105(E)

See also

• AK Bar Ethics Op. 96-6: Lawyer as Arbitrator and Advocate
• DC Ethics Op. 279: Screening to Cure Imputed Disqualification
• DC Ethics Op. 356: Unidentifiable and Thrust-Upon Conflicts

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-276