Can a New York lawyer mediate a divorce, then represent one party to draft the settlement papers, and offer limited-scope services to pro se clients from an out-of-state office?
NYSBA Ethics Opinion 1236: Mediation, Limited-Scope Services, and Remote New York Practice
Short answer: The opinion concludes that a New York lawyer may mediate a divorce and then, with the informed written consent of all parties, represent one of them in drafting the divorce papers; may offer limited-scope "unbundled" services to pro se New York clients; need not always disclose ghostwriting; may not call himself a "legal consultant"; and must satisfy Judiciary Law § 470's physical-office requirement when practicing New York law from out of state.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York'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.
Plain-English summary
The inquirer is a matrimonial lawyer admitted in New York and Florida who is closing his New York office and moving to Florida, from which he plans to mediate divorces for New York clients over the internet and to provide what he calls "legal consultant" services. The opinion answers five related questions.
First, on serving as mediator and then representing one party: when acting as a neutral, the lawyer is governed by Rule 2.4, and under N.Y. State 1178 (2019) a lawyer-mediator is not representing the parties. Rule 2.4(b) requires the mediator to tell unrepresented parties he is not their lawyer and to explain the difference between the neutral and advocate roles. Rule 1.12(b)(1) then permits the lawyer, after the mediation, to represent one party with the informed consent, confirmed in writing, of all parties to the mediation; the lawyer must make clear he represents only one party and that the other spouse should consult independent counsel.
Second, on limited-scope representation: Rule 1.2(c) permits limiting the scope of a representation if the limitation is reasonable, the client gives informed consent, and necessary notice is given to the tribunal or opposing counsel. The opinion finds advising, negotiating, and drafting papers for a pro se client reasonable, provided the client understands the risks of not having full-service representation, citing N.Y. State 856 (2011) and N.Y. County 742 (2010).
Third, on ghostwriting: relying on N.Y. County 742 and N.Y. State 856 ¶ 10, the opinion concludes that disclosure of an attorney's behind-the-scenes drafting is required only "where necessary," meaning where a court rule, judge's rule or order requires it, or where nondisclosure would be a misrepresentation. It expressly overrules N.Y. State 613 (1990), which had required disclosure in every case, because that opinion predated Rule 1.2(c).
Fourth, on the "legal consultant" label: the committee disapproves the term. Under 22 NYCRR Part 521 "legal consultant" is a defined status for foreign-licensed lawyers, which the inquirer does not hold, and using the label otherwise could mislead clients and adverse counsel in violation of Rule 8.4(c). When the inquirer advises or represents clients, he remains a lawyer subject to all the Rules.
Fifth, on the physical office: while declining to decide questions of law, the committee notes Judiciary Law § 470 requires a nonresident New York-admitted lawyer to maintain a New York office to practice in New York, citing Schoenefeld v. State of New York (N.Y. 2015; 2d Cir. 2015) and N.Y. State 1025 (2014), and that a § 470 violation may reflect on fitness under Rule 8.4(b).
In practice
Under this opinion, a lawyer who mediates a divorce may go on to draft the settlement for one party only after obtaining informed written consent from all mediation parties and advising the other spouse to seek independent counsel (Rule 1.12(b)(1)). Per the opinion, unbundled limited-scope work for pro se clients is permitted under Rule 1.2(c) with informed consent and disclosure of the risks, and ghostwriting need not be disclosed to the court unless a rule, order, or the avoidance of misrepresentation requires it. The opinion holds that the lawyer may not market himself as a "legal consultant" and, as a question of law it flags but does not decide, must address Judiciary Law § 470's physical-office requirement and Florida's own rules.
Common questions
Q: Can a divorce mediator later draft the settlement agreement for one of the spouses?
A: Per the opinion, yes, but only with the informed consent of all parties to the mediation, confirmed in writing, and after making clear he represents only one party and that the other should consult independent counsel (Rule 1.12(b)(1)).
Q: Does a New York lawyer have to disclose that he ghostwrote a pro se litigant's papers?
A: Per the opinion, only "where necessary": where a court rule, a judge's rule, or a court order requires it, or where nondisclosure would amount to a misrepresentation. The committee overruled its prior opinion (N.Y. State 613) that had required disclosure in every case.
Q: Can a lawyer offering limited services call himself a "legal consultant" instead of a lawyer?
A: No. Per the opinion, "legal consultant" is a defined status under 22 NYCRR Part 521 that the inquirer does not hold, and using the label could mislead clients and adverse counsel in violation of Rule 8.4(c).
Q: Can a New York lawyer practice New York law remotely from out of state without a New York office?
A: The opinion notes, without deciding the legal question, that Judiciary Law § 470 requires a nonresident New York-admitted lawyer to maintain a physical office in New York, and that a violation may reflect on the lawyer's fitness under Rule 8.4(b).
Background and rules framework
The opinion interprets New York Rule 2.4 (lawyer as third-party neutral), Rule 1.12(b) (conflicts for former neutrals), Rule 1.2(c) (limited-scope representation), and Rule 8.4(b)-(c) (criminal acts reflecting on fitness; dishonesty and misrepresentation). It also discusses 22 NYCRR Part 521 (licensing of legal consultants) and Judiciary Law § 470 (physical-office requirement), both questions of law the committee flags but does not decide. These correspond to ABA Model Rules 2.4, 1.12, 1.2, and 8.4.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.2(c), 1.12(b)(1), 2.4(a)-(b), 8.4(b)-(c)
- ABA Model Rules 2.4, 1.12, 1.2, 8.4 (analogues)
Statutes and regulations:
- New York Judiciary Law § 470 (physical-office requirement; noted, not interpreted)
- 22 NYCRR Part 521 (licensing of legal consultants); 22 NYCRR § 118.1(g) (retired-lawyer registration)
Cases:
- Schoenefeld v. State of New York, 25 N.Y.3d 22 (2015), upholding the § 470 physical-office requirement
- Schoenefeld v. State of New York, 821 F.3d 273 (2d Cir. 2015), rejecting a constitutional challenge to § 470
Other opinions cited:
- N.Y. State 1178 (2019): lawyer-mediators are not representing the parties
- N.Y. State 856 (2011) and N.Y. County 742 (2010): limited-scope representation and ghostwriting
- N.Y. State 613 (1990): overruled to the extent it required disclosure of ghostwriting in every case
- N.Y. State 1025 (2014): § 470 and the New York office requirement
See also
- NY State Bar Op. 1241: Out-of-State Office Letterhead
- ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
- ABA Formal Op. 472: Communicating With a Limited-Scope Client
- ABA Formal Op. 495: Lawyers Working Remotely
Source
- Landing page: https://nysba.org/ethics-opinion-1236/