When a lawyer serves as a neutral arbitrator or mediator and a party has no lawyer, may the lawyer-neutral give that party legal advice?

Plain-English summary

The Committee was asked whether a lawyer selected or appointed in alternative dispute resolution proceedings to serve as a neutral mediator or arbitrator is permitted or required to advise unrepresented parties of their legal rights and responsibilities beyond explaining the ADR proceeding.

The opinion concluded that neutrality is the touchstone. Although a neutral in ADR is not a judge and is not subject to the Michigan Code of Judicial Conduct, the opinion looked to MCJC 1, 2B, 3A(4), and 3A(8) as declaratory of what neutrality means: according every interested person a full right to be heard, intervening only to promote expedition or clarity without intimidating witnesses, and maintaining public confidence in impartiality. Because Michigan's constitution guarantees self-representation and there is no right to counsel in civil cases, the opinion concluded no requirement to give advice can be imposed in ADR matters treated as civil. But the absence of a requirement is not a prohibition: citing opinions from several states, the opinion observed that advising a self-represented party about the dangers of self-representation is something that "should" be done even if it need not be, and that the neutral should make clear they represent neither party and that no party should look to them to protect that party's interests or, in arbitration where ex parte communication is barred, confidences.

When a lawyer fills the neutral role, the lawyer is bound by the Michigan Rules of Professional Conduct, and any breach of neutrality would arguably be conduct prejudicial to the administration of justice under MRPC 8.4(b) or (c). The opinion noted that a neutral has no client in the matter, so rules governing representation do not otherwise apply. It recognized the line between permissible sua sponte guidance to focus a self-represented party and prohibited advocacy can blur, but concluded that, as judges and hearing officers do daily, a neutral may exercise ordinary discretion to facilitate fair presentation. Nothing in the MCJC or MRPC compels anything but neutrality, and nothing prohibits the neutral from gratuitously offering information when fairness permits or demands it; in mediation, ensuring both sides understand what they gain and relinquish before closing a deal is commonplace.

Currency note

This opinion was issued in 1996, before later amendments to the Michigan 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: Must a lawyer-neutral advise a self-represented party of their legal rights?

A: No. The opinion concluded that because ADR matters here are civil and there is no right to counsel, no requirement to give advice can be imposed; neutrality is the touchstone.

Q: May the lawyer-neutral offer any information to a self-represented party?

A: Yes. The opinion concluded the lack of a requirement is not a prohibition, and the neutral may gratuitously offer information when fairness permits or demands it, so long as neutrality is preserved.

Q: What must the neutral make clear to unrepresented parties?

A: The opinion concluded the lawyer should assure the parties understand the lawyer represents neither of them and that no party may rely on the lawyer to protect that party's interests or, in arbitration, preserve confidences.

Q: Which rule governs a lawyer acting as a neutral?

A: The opinion concluded a breach of neutrality would arguably violate MRPC 8.4(b) or (c) as conduct prejudicial to the administration of justice; a neutral has no client, so representation rules do not otherwise apply.

Background and rules framework

The opinion interpreted MRPC 8.4(b) and (c) (Model Rule 8.4), which define professional misconduct including conduct prejudicial to the administration of justice, as the constraint on a lawyer-neutral. It looked to the Michigan Code of Judicial Conduct (MCJC 1, 2B, 3A(4), 3A(8)) as declaratory of neutrality, and to MCR 3.602(J)(1)(b) on arbitration. The opinion canvassed neutrality and advice-to-unrepresented-parties opinions from California, Florida, Connecticut, Ohio, Tennessee, New York, New Jersey, New Hampshire, and Virginia, and noted Michigan's constitutional guarantee of self-representation (Mich Const 1963, art 1, sec 13).

Citations and references

Rules of Professional Conduct:

• MR 8.4 / MRPC 8.4(b), (c) (professional misconduct; conduct prejudicial to the administration of justice)

Court rules and code provisions:

• MCJC 1, 2B, 3A(4), 3A(8): judicial impartiality and the right to be heard
• MCR 3.602(J)(1)(b): arbitration
• Mich Const 1963, art 1, sec 13: right of self-representation

Other opinions cited:

• Los Angeles Op 415, Florida Op 86-8, Connecticut Op 35, Ohio Op 82-2, Tennessee Op 90-F-124, New York Op 80-23, New Jersey Op 494, New Hampshire Ops 1990-91/9, 89-90/15 and 1987-8/3, Virginia Op 590: a lawyer-neutral's duties toward unrepresented parties

See also

• Mich Ethics Op. RI-235: partisan mediator later representing the selecting party
• Mich Ethics Op. RI-188: file retention for a neutral arbitrator or mediator
• Mich Ethics Op. RI-166: adjudicator's duty on ex parte material after proofs

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1126&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-256

April 8, 1996

SYLLABUS

The touchstone for a lawyer functioning as a neutral arbitrator or mediator in an alternate dispute resolution proceeding in which one or more of the participants is self-represented is to preserve neutrality.

A lawyer functioning as a neutral arbitrator or mediator in an alternate dispute resolution proceeding in which one or more of the participants is self-represented should assure that all parties understand that the lawyer's function is not to provide advice or counsel to any party, and that no party may rely on the lawyer to protect its interests or (in arbitration, where ex parte communications are forbidden) confidences.

References: MRPC 8.4(b) and (c); MCJC 1, 2B, 3A(4) and (8); MCR 3.602(J)(1)(b).

TEXT

The Committee has been asked to analyze the ethical strictures, if any, that guide a lawyer who has been selected or appointed in alternate dispute resolution proceedings (ADR) to serve as a neutral mediator or arbitrator in dealing with unrepresented parties. The specific question posed has been phrased as follows:

"When a lawyer serves as a neutral arbitrator or mediator, is the lawyer permitted or required by ethics rules to advise unrepresented parties of their legal rights and responsibilities, beyond explaining the ADR proceedings?"

The Michigan Code of Judicial Conduct allows judicial discretion in determining the extent to which a judge operating in an adjudicative capacity may or should become involved in assisting litigants, whether represented or not, in presenting their positions. MCJC 3A(4) calls upon judges to accord every person legally interested in a proceeding, or the person's lawyer, "full right to be heard according to law." MCJC 3A(8) authorizes a judge to intervene in trial of a case to promote expedition, prevent waste of time, or clear up some obscurity, but cautions against intervention which causes witnesses to be frightened or intimidated, or which otherwise tends to prevent proper presentation of the cause of the ascertainment of the truth. The same provision urges judges to avoid interruptions of counsel in their arguments except for purposes of clarification. MCJC 1 requires the judge to maintain an independent judiciary, and MCJC 2B requires a judge to act in a manner which promotes public confidence in the integrity and impartiality of the judiciary.

A neutral adjudicator in ADR proceedings, although obviously not a judge and not subject to the Michigan Code of Judicial Conduct, nonetheless is constrained to maintain neutrality in both act and deed with respect to the ADR proceeding from start to finish. MCR 3.602(J)(1)(b); Los Angeles Op 415 (1983). MCJC 3A(4) and (8) could well be considered declaratory of what neutrality means in practice, although an arbitrator or mediator would almost certainly be given greater leeway, given the limited scope of judicial review of arbitration. In contrast, a mediator's job is to bring the parties to agreement; any hint of favoritism would be antithetical to accomplishment of that goal, but mediation is also much less formal, and it would seem normal for a mediator to engage in give and take with each side in turn as part of the process of finding common ground.

Mich Const 1963, art 1, §13, guarantees to all persons, in civil and criminal proceedings, the right of self-representation. In criminal cases, persons who opt for self-representation must be advised by the presiding judicial officer of the right to counsel. There is no corresponding right to counsel in civil cases, and hence no predicate right to the assistance of legal counsel to which to extend.

Thus, on the assumption that ADR issues would fit into the general category of civil matters in which there is no constitutional or judicially created right to counsel, no requirement of giving advice can be imposed. However, the lack of a requirement cannot be interpreted as a prohibition. Other states have deemed the giving of advice concerning the dangers of self-representation in mediation or arbitration matters something that "should" be done, whether or not it "must" be done. Florida Op 86-8 (1986); Connecticut Op 35 (1982); Ohio Op 82-2 (1982); Tennessee Op 90-F-124 (1990). In the same vein, the lawyer should additionally assure understanding by the parties that the lawyer represents neither of them and neither should look to the lawyer to protect that party's individual interests or (as arbitrator) to preserve any confidences (since ex parte communications are prohibited). New York Op 80-23.

Although a neutral arbitrator or mediator need not be a lawyer, when a lawyer is selected to fulfill these functions the lawyer is bound by the Michigan Rules of Professional Conduct. Neutrality again is the touchstone, since any breach thereof would arguably constitute conduct prejudicial to the administration of justice, in violation of MRPC 8.4(b) or (c). Other Rules apply by their terms only to lawyers engaged in a representation, i.e., to lawyers representing clients. By definition, a neutral arbitrator or mediator has no client with respect to the matter being arbitrated or mediated. See New Jersey Op 494 (1982), New Hampshire Op 1990-91/9 (1991).

There will undoubtedly be occasions when the fine line between acceptable sua sponte intrusion into the proceedings to guide or focus a self-represented party on the one hand, which is permissible and functioning as advocate or counsel to that party, which is prohibited becomes blurred. See New Hampshire Op 89-90/15 (1990); Virginia Op 590 (1985); New Hampshire Op 1987-8/3 (1987). But every day, in courtrooms and administrative proceedings throughout the state and the nation, judges, hearing officers, and their counterparts faced with self-represented parties exercise an unremarkable degree of discretion in facilitating the orderly presentation and fair disposition of the issues pending before them.

Nothing in either MCJC or MRPC compels anything but neutrality on the part of a lawyer functioning as a neutral arbitrator or mediator in proceedings involving a self-represented party. Likewise, nothing prohibits such a neutral adjudicator in gratuitously and sua sponte offering such self-represented parties information when in the opinion of the adjudicator fairness either permits or demands such action. In mediation, where the goal is agreement, it would seem commonplace for the mediator to ensure, before the deal is closed, that both sides understand what they are gaining and what they are relinquishing.