Ezel / Ethics Opinions / NYSBA
NYSBA 2014-10-01

Can a lawyer who also mediates divorces write a novel based on what they learned from mediation clients?

Short answer: Only if no one can identify the clients. Because the inquirer's mediation was not distinct from the legal work of drafting the divorce papers, Rule 5.7(a)(1) subjects the mediation to the confidentiality rules, so the lawyer may publish a fictionalized account only if there is no reasonable likelihood readers could ascertain a client's identity.
Currency note: this opinion is from 2014
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1026: A lawyer-mediator's confidentiality duties in a work of fiction

Short answer: A lawyer who mediates divorces and then drafts the divorce papers when mediation succeeds is providing mediation services that are "not distinct" from legal services, so under Rule 5.7(a)(1) the confidentiality rules apply, and the lawyer may publish a work of fiction drawing on the mediation only if there is no reasonable likelihood that readers could identify a client.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquirer is a lawyer who serves as a private divorce mediator and, when mediation succeeds, drafts and files the divorce papers for the parties under a separate retainer. He wanted to write a book of stories drawn from his mediation clients, changing names and locations, fictionalizing details, and blending multiple clients' stories. He asked whether he could do so without the parties' consent (¶¶ 1-5).

The committee first explained that Rule 2.4, which governs a lawyer serving as a third-party neutral, does not itself impose a duty of confidentiality on a mediator. The duty here comes instead from Rule 5.7, which addresses nonlegal services. Mediation is a "nonlegal service," and Rule 5.7(a)(1) provides that when a lawyer's nonlegal services to a person are "not distinct" from legal services to that person, the lawyer is subject to the Rules for both. The committee found the mediation and the divorce-paper drafting were intimately bound up with each other (the mediation produces a memorandum of understanding the lawyer then turns into court papers), so they were not distinct, and the lawyer was therefore subject to the confidentiality rules with respect to the mediation (¶¶ 6-10).

Applying Rule 1.6, the committee found that much of the mediation information was "likely to be embarrassing or detrimental" and was information the client had asked be kept confidential (the retainer promised "complete confidentiality"), so it was confidential even though it was not privileged. Under Rule 1.9(c), that duty continues after the representation ends (¶¶ 11-12).

The committee then turned to the fiction. Drawing on Comment [4] to Rule 1.6 (which permits a lawyer to use a hypothetical so long as there is no reasonable likelihood the listener can identify the client), the committee concluded a lawyer may publish fiction inspired by a representation if there is no reasonable likelihood readers can ascertain a client's identity. It cautioned that this is a high standard, especially for a local practice where small details can identify clients to neighbors, and noted the retainer's promise of "complete confidentiality" may impose contractual duties beyond the Rules, a question of law outside the committee's jurisdiction (¶¶ 13-18).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion holds that a lawyer-mediator whose mediation is not distinct from the legal services provided to the same parties is bound by the confidentiality rules as to the mediation. Per the opinion, the lawyer may write and publish fiction based on confidential mediation information only if the material is so altered, disguised, and blended that there is no reasonable likelihood any reader could identify a client; the committee characterized that as a high and possibly difficult standard. The committee noted that the duty survives the end of the representation under Rule 1.9(c) and that the retainer's confidentiality promise may create separate contractual obligations it did not decide.

Common questions

Q: Does Rule 2.4 alone make a lawyer-mediator keep mediation information confidential?

A: No. The committee explained that Rule 2.4 treats mediation parties as non-clients and does not by itself impose a confidentiality duty; the duty here arises under Rule 5.7 (¶ 6).

Q: Why are the confidentiality rules applied to this lawyer's mediation work?

A: Because the mediation was "not distinct" from the legal services of drafting and filing the divorce papers, Rule 5.7(a)(1) subjects the lawyer to the Rules for both, including the confidentiality provisions (¶¶ 9-10).

Q: Can the lawyer publish a fictionalized book about the cases?

A: Only if there is no reasonable likelihood that readers can ascertain a client's identity. If the information is sufficiently disguised that no reader can trace it to a particular client, the book does not reveal confidential information (¶¶ 14-15).

Q: Does the duty end when the divorce is finalized?

A: No. Under Rule 1.9(c), the duty not to reveal a former client's confidential information continues after the representation concludes (¶ 12).

Background and rules framework

The opinion interprets New York Rule 5.7 (responsibilities regarding nonlegal services), Rule 1.6 (confidentiality of information), Rule 1.9(c) (duties to former clients), and Rule 2.4 (lawyer as third-party neutral), corresponding to ABA Model Rules 5.7, 1.6, 1.9, and 2.4. The analysis turns on whether the mediation services were "distinct" from the lawyer's legal services and, if not, whether a fictionalized account creates a reasonable likelihood that a client could be identified.

Citations and references

Rules of Professional Conduct:

  • MR 5.7 / NY RPC 5.7(a) (nonlegal services not distinct from legal services)
  • MR 1.6 / NY RPC 1.6 (confidential information; hypotheticals, Cmt. [4])
  • MR 1.9 / NY RPC 1.9(c) (continuing duty to former clients)
  • MR 2.4 / NY RPC 2.4 (lawyer serving as third-party neutral)

Other opinions cited:

  • N.Y. State 736 (2001): attorney-mediator preparing divorce documents
  • N.Y. State 1015 (2014): factors on whether legal and nonlegal services are distinct
  • N.Y. State 678 (1996); N.Y. State 979 (2013): whether lawyer-mediators render legal services

See also

Source