If a lawyer acts in a private matrimonial mediation service for a couple, may the lawyer later represent one spouse in their divorce?

Plain-English summary

A lawyer asked to participate in a private matrimonial mediation service described four possible roles: advising both husband and wife on the law of equitable distribution and drafting a property settlement reflecting terms the spouses negotiated directly (Item 1); drafting a settlement on the terms the parties agreed without the lawyer's advice (Item 2); doing the Item 2 work and then representing one spouse in the subsequent divorce (Item 3); and advising both spouses on equitable distribution and then representing one of them in the divorce (Item 4).

The Committee recalled its prior holdings that a lawyer may not represent one party in a divorce when the lawyer previously represented the other (Opinions 128, 155, and 356), and the Supreme Court's statement in In re Braun, 49 N.J. 16 (1967), that a lawyer who had attempted to counsel both spouses toward reconciliation could not thereafter with propriety represent either in a divorce action. It reasoned that in preparing a property settlement, or even in discussing how equitable distribution applies to the couple's facts, the lawyer can be expected to obtain confidential information about the marital situation, and that equitable distribution, even when agreed, may carry tax consequences with serious financial impact. A lawyer who later became one spouse's advocate would be violating the spirit of DR 9-101 by failing to avoid even the appearance of impropriety, and, given the duty of zealous representation under DR 7-101, would inevitably face a conflict between zealously serving one party and respecting the confidences of the other obtained in the mediator role.

Drawing on Opinion 356, where a brief, no-fee consultation with one spouse barred later representation of the other on appeal, the Committee observed that in a mediation a party could unintentionally reveal information or exhibit a demeanor to the lawyer-mediator because the party felt confident in the lawyer's perceived role as an impartial arbitrator, so that for the lawyer to later appear in an adversary position would be, or at least appear to be, grossly unfair, and even full disclosure would not cure the problem. While recognizing that a lawyer's participation in matrimonial mediation can be valuable in resolving disputes before litigation in a non-adversarial setting, the Committee emphasized that in doing so the lawyer is eliminated from any future representation of either party in the divorce proceeding.

Currency note

This opinion was issued in 1983, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the freestanding "appearance of impropriety" standard the Committee invoked, and it was decided under the now-superseded DR 9-101 and DR 7-101. The conflict facing a lawyer who served as a third-party neutral is now addressed by RPC 1.12, with the duties to former clients in RPC 1.9. 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: Could a lawyer-mediator later represent one spouse in the divorce?

A: No. The opinion concluded that participating in the matrimonial mediation eliminated the lawyer from later representing either spouse in the divorce.

Q: Could the spouses cure it by consenting after full disclosure?

A: No. The opinion concluded that even full disclosure would not cure the ethical problems created by the lawyer-mediator later taking an adversary position against a mediation participant.

Q: Why did mediating create a conflict at all?

A: Per the opinion, in mediating or discussing equitable distribution the lawyer obtains confidential information and the parties may speak freely trusting the lawyer's impartial role, so later advocacy would pit zealous representation of one spouse against the duty to protect the other's confidences.

Q: Was matrimonial mediation itself improper?

A: No. The opinion recognized that a lawyer's participation in a private matrimonial mediation service can be valuable; the limit was only that it barred the lawyer from later representing either spouse in the divorce.

Citations and references

Rules of Professional Conduct:

• MR 1.12 / NJ RPC 1.12 (lawyer who served as a third-party neutral; the conflict the opinion addresses through DR 9-101)
• MR 1.9 / NJ RPC 1.9 (duties to former clients)

Cases:

• In re Braun, 49 N.J. 16 (1967) (a lawyer who counseled both spouses could not later represent either in a divorce)

Other opinions cited:

• NJ ACPE Opinions 128, 155, and 356 (a lawyer may not represent one spouse in a divorce after representing or consulting with the other)

See also

• NJ ACPE Op. 711: Divorce Mediation Centers
• NJ ACPE Op. 699: Collaborative Law
• NJ ACPE Op. 531: Opposing a Departed Partner's Former Client in a Divorce

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp521-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

112 N.J.L.J. 394, October 6, 1983

OPINION 521

Participation in Private Matrimonial Mediation Service and Subsequent Representation of either Spouse in Divorce Action

The inquiring attorney has been asked to participate in a private matrimonial mediation service. The inquirer states that his participation would require him to perform one or more of the services set forth in the following items:

Item 1: Advise both husband and wife regarding the law of equitable distribution and act as the draftsman of a property settlement agreement between the spouses, the terms of which agreement were determined by direct negotiations between the husband and wife.

Item 2: Draft a property settlement agreement setting forth the terms agreed to by the parties without the advice of the lawyer.

Item 3: Perform the services set forth in Item 2 above and then represent either the husband or the wife in the subsequent divorce proceeding.

Item 4: Advise both the husband and the wife regarding the law of equitable distribution and then represent either husband or wife in the subsequent divorce proceeding.

This Committee has previously held that a lawyer may not ethically represent one party in a divorce proceeding when the lawyer has previously represented the other party. See, e.g. Opinion 128, 91 N.J.L.J. 309 (1968); Opinion 155, 92 N.J.L.J. 358 (1969); Opinion 356, 99 N.J.L.J. 1065 (1976). Furthermore, our Supreme Court has said that after a lawyer "had attempted to counsel both husband and wife with a view to reconciliation... he could not thereafter with propriety represent either in a divorce action." In re Braun, 49 N.J. 16, 18-19 (1967).

In the course of preparing a property settlement agreement, or even in the course of discussing the applicability of the law of equitable distribution to the particular fact situation presented by clients of the matrimonial mediation service, it can be anticipated that the lawyer will obtain confidential information concerning the marital situation. Equitable distribution, even though agreed to by the parties, may have tax consequences of which they are unaware and which could have serious financial impact upon them. If the lawyer subsequently represents one party and becomes the advocate for that party, he would be violating the spirit of DR 9-101 in failing to avoid even the appearance of impropriety. Because a lawyer is required to represent his client zealously (DR 7-101) any lawyer representing one party in a divorce proceeding subsequent to his acting in a mediation role would inevitably be faced with a conflict between the lawyer's duty to act zealously on behalf of one party and the lawyer's duty to respect the confidences of the other party, albeit confidences conveyed to the lawyer in his capacity as a mediator.

In Opinion 356, supra, a wife conferred with a lawyer's partner concerning a possible matrimonial action. No notes or history were taken, no retainer was paid, no fees for the conference were charged and the matrimonial action against the husband was instituted by the wife through other attorneys. The husband sought to retain the lawyer to represent him in his appeal to the Appellate Division. The Committee noted that the confidences reposed in the lawyer might lead him to emphasize in his argument some parts of the record which he would otherwise refrain from emphasizing or to minimize or to ignore other parts of the record which he might otherwise stress. Similarly, in the context of a mediation service, one of the parties could unintentionally reveal information or exhibit a demeanor to the lawyer-mediator because the party felt confident with the lawyer's perceived role as an impartial arbitrator. For that lawyer to later appear in a proceeding in an adversary position would be, or at the very least appear to be, grossly unfair to the participant in the mediation service and the Committee believes that even full disclosure would not cure the serious ethical problems created by such a situation.

The Committee recognizes that a lawyer's participation in a private matrimonial mediation service can be valuable in resolving disputes prior to litigation in a non-adversarial setting. But it must be emphasized that in so doing the lawyer is eliminated from any future representation of either party in the divorce proceeding.