Can a lawyer act as a divorce mediator, draft the separation agreement, and team up with a non-lawyer counselor?
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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer who wished to provide divorce-mediation services with a family-counselor associate asked whether he could, as a sole mediator or co-mediator, draft a separation agreement for the parties, whether he could advertise jointly with his non-lawyer associate and use a trade name, and whether mediation payments could be divided with the co-mediator. The committee first described several mediation models (single-lawyer mediator, lawyer co-mediator, lawyer-advocate, single-lawyer advisor) and limited its opinion to the mediator and co-mediator roles, separating the mediation work from the drafting of an agreement.
On the mediation itself, the committee declined to treat the lawyer-mediator as "representing" either party in the traditional adversarial sense; the mediator is an impartial intermediary. It agreed with the New York City Bar (Opinion 80-23) that the Code should not be read to bar attorney divorce mediation, but that caution is required so the parties understand the lawyer's limited role and its risks. The committee held that DR 5-105(C)'s "obvious"/"adequately represent" test should not be applied to prevent a lawyer, with the parties' informed consent, from acting in a non-representational mediator role. The policies behind DR 5-105 still govern: the parties must be fully informed and consent to the limits on the lawyer's role, and the lawyer must not take on a limited role where doing so would be inappropriate to the matter or unfair to the parties (the committee quoted the New York committee's caution that in some matrimonial disputes truly informed consent to a non-representation role may not be possible).
On drafting the separation agreement, the committee saw a more traditional dual-representation role, because drafting involves choices that can favor one party. Unless the agreement is so complete that the lawyer is a mere scrivener (which will not usually be so), DR 5-105 applies: the lawyer must obtain both parties' informed consent at the time he undertakes drafting and must satisfy himself that DR 5-105(C)'s "obviousness" test is met, with the degree of any independent-counsel participation a relevant factor. As to teaming with a non-lawyer mediator, the committee allowed the association provided the services of each are properly identified and attributed, clients are separately billed for each one's services, and clients are not misled as to the identity, responsibility, and status of the participants.
Currency note
This opinion was issued in 1985, before Massachusetts's adoption of the 2015 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: Can a lawyer act as a divorce mediator for both spouses?
A: Per the opinion, yes, in a non-representational role, if the lawyer makes clear he represents neither party, explains the risks of proceeding without independent counsel, and obtains each party's informed consent. The committee said DR 5-105(C)'s adequacy test does not bar that role, though the policies behind DR 5-105 still apply.
Q: Can the mediating lawyer also draft the separation agreement?
A: The committee treated drafting as dual representation under DR 5-105, because drafting choices can favor one party. The lawyer must get both parties' informed consent when he undertakes drafting and must be satisfied the DR 5-105(C) "obviousness" test is met.
Q: Can the lawyer split fees with a non-lawyer co-mediator?
A: The committee permitted association with a non-lawyer mediator where each person's services are properly identified and attributed, clients are separately billed for each one's services, and clients are not misled about the participants' identity, responsibility, and status.
Background and rules framework
The opinion applied DR 5-105 (multiple representation and the DR 5-105(C) consent-plus-objective test) and EC 5-20 (a lawyer serving as impartial arbitrator or mediator), and addressed association with a non-lawyer and joint billing. Those correspond today to Model Rule 2.4 (lawyer serving as a third-party neutral), Model Rule 1.7 (concurrent conflicts), Model Rule 5.4 (sharing fees with a non-lawyer), and Model Rule 7.5 (firm names and trade names; now largely within Rule 7.1). The committee drew on opinions of the New York City, Boston, and District of Columbia bars.
Citations and references
Rules of Professional Conduct:
- DR 5-105 / Model Rule 1.7 and 2.4 (multiple representation; lawyer as neutral mediator)
- EC 5-20 (lawyer as impartial arbitrator or mediator)
- Model Rule 5.4 (sharing fees with a non-lawyer); Model Rule 7.5 (trade names)
Other opinions cited:
- New York City Bar Op. 80-23 (1981); Boston Bar Op. 78-1 (1978); D.C. Bar Op. 143 (1984): attorney divorce mediation
See also
- MA Bar Ethics Op. 84-1: A bank marking up its staff attorney's fee to a mortgagor
- MA Bar Ethics Op. 87-1: Suing a parent on an injured child's behalf
Source
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