After mediating a divorce, can the lawyer-mediator draft and file the separation agreement and divorce papers for both spouses as joint clients?

Plain-English summary

The committee considered whether a lawyer who serves as a matrimonial mediator may, after the mediation, draft and file a separation agreement and divorce papers reflecting the terms the spouses agreed to. It began from settled ground: a lawyer serving as a mediator does not "represent" either party, so a lawyer may mediate for spouses even where the lawyer could not jointly represent them. But once the mediation ends and the lawyer prepares and files documents for both spouses, the lawyer is representing two clients who are about to become formal adversaries in the divorce, and DR 5-105(A) and (C) govern.

The committee modified its earlier opinion, N.Y. State 258 (1972), which had treated joint representation of both spouses in a divorce as per se improper. It held that DR 5-105(C) forbids the dual representation unless, in the particular case, a disinterested lawyer would believe the lawyer can competently represent each spouse and each consents after full disclosure. Because there will be occasions when a disinterested lawyer could so conclude, the committee rejected Opinion 258's absolute ban. It also read EC 5-20, which says a lawyer who acted as a mediator "should not thereafter represent in the dispute any of the parties," as directed at a failed mediation where the lawyer would take one side, not at a fully resolved matter where no dispute remains.

The committee stressed that in most cases the test will not be met: even when spouses agree on broad terms, details remain, and one or both could benefit from independent advice on options, on whether the terms meet their interests, and on alternatives. So the lawyer-mediator may not, as a matter of regular practice, prepare and file divorce papers for otherwise unrepresented spouses, and may not advertise or imply that doing so is part of the lawyer's standard mediation service. Where it is permissible, and the lawyer does not formally appear, the lawyer must ensure the lawyer's role is disclosed to the court. The committee distinguished Levine v. Levine, reasoning that a court's later refusal to rescind an agreement does not establish that undertaking the joint representation was proper at the outset.

Currency note

This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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: Can a lawyer-mediator draft and file the divorce papers for both spouses?

A: The opinion concluded only when the mediation fully succeeded, no contested issues remain, both spouses are fully informed and consent, and a disinterested lawyer could find the lawyer can competently represent each. This modified N.Y. State 258's per se ban.

Q: Can a lawyer advertise this as a routine part of mediation?

A: No. The committee held the likelihood of meeting DR 5-105(C) is too uncertain before mediation begins, so it would be misleading to state or imply that drafting and filing the divorce papers is part of the lawyer's standard practice.

Q: Does the lawyer have to tell the court about the lawyer's role?

A: Yes. Where the lawyer-mediator prepares the papers without formally appearing, the opinion concluded the lawyer must ensure the role is disclosed to the court so the court is not misled.

Background and rules framework

The opinion interpreted DR 5-101(A) (personal-interest conflicts), DR 5-105(A) and (C) (representing clients with differing interests and the "disinterested lawyer" consent test), and EC 5-20 (a lawyer serving as mediator) of New York's former Code of Professional Responsibility. The Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 2.4 (lawyer serving as a third-party neutral). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest); MR 2.4 (lawyer as third-party neutral)
• NY DR 5-101(A); DR 5-105(A), (C)

Cases:

• Levine v. Levine, 56 N.Y.2d 42, 451 N.Y.S.2d 26 (1982), joint representation in preparing a separation agreement

Other opinions cited:

• N.Y. State 258 (1972): modified; had treated joint representation of divorcing spouses as per se improper
• N.Y. City 80-23 (1981): lawyers may serve as mediators in matrimonial disputes

See also

• NY State Bar Op. 1178: Lawyer mediator as third-party neutral
• NY State Bar Op. 1236: Divorce mediation, limited scope and remote practice
• NY State Bar Op. 1026: Lawyer mediator's confidentiality duties in a work of fiction

Source

• Landing page: https://nysba.org/opinion-736/