May a lawyer who mediated a dissolution prepare modification documents for both parties?

Plain-English summary

A lawyer who mediated dissolution matters asked whether the lawyer could prepare documents for both parties to modify a dissolution.

Under Rule 4-1.12, the opinion bars participation in the same proceeding after serving as mediator unless all parties give informed consent confirmed in writing. With that consent, the lawyer could represent only one party. The lawyer must clearly tell the other party that the lawyer does not represent that party and their communications are not confidential. Rule 4-1.7(b)(3) also bars joint representation of the two parties.

In practice

The opinion rejects preparing the modification documents as joint counsel. It conditions any later role after mediation on every party’s informed written consent and limits that role to one party.

Common questions

Q: Can the mediator later represent both parties?

A: No. The opinion applies Rule 4-1.7(b)(3) to bar joint representation.

Q: Can the mediator represent one party?

A: Only if all parties give informed consent confirmed in writing under Rule 4-1.12.

Q: What must the other party be told?

A: The opinion requires clear communication that the lawyer does not represent the other party and that communications with the lawyer are not confidential.

Background and rules framework

The opinion applies Rule 4-1.12 to a lawyer’s participation after mediation and Rule 4-1.7(b)(3) to the proposed joint representation.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.12
• Rule 4-1.7

See also

• Missouri Informal Op. 2011-05: Former Guardian ad Litem Conflict

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/2010-0055/

Original opinion text

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

QUESTION: Attorney is a mediator in dissolution matters. May Attorney prepare the necessary documents for the parties to modify a dissolution?

ANSWER: Under Rule 4–1.12, Attorney may not participate in any proceeding in which Attorney participated as a mediator, “unless all parties to the proceeding give informed consent, confirmed in writing.” If informed consent were obtained from both parties, Attorney will only be able to represent one party and solely that party. It would also be very important for Attorney to clearly communicate to the other party that Attorney will not be representing that party’s interests, at all, and that no communications between Attorney and the unrepresented party would be confidential. Under Rule 4–1.7(b)(3), it is not permissible for Attorney to represent them jointly.