When a lawyer serves as a volunteer mediator, must the lawyer disclose to the parties that he or she is a lawyer?

Plain-English summary

The committee was asked whether a lawyer who serves as a volunteer mediator under a community mediation service is permitted or required to reveal his or her status as a lawyer to the parties. It noted that community-dispute-resolution mediators take guidance from separate Standards interpreted by the Mediator Ethics Advisory Committee (MEAC), and that MEAC Opinion 2010-02 apparently concluded those Standards do not require, and perhaps discourage, such disclosure. The committee stated it has no jurisdiction over those Standards and was construing only the New York Rules of Professional Conduct, which bind all New York lawyers, including those serving as mediators (paragraphs 1 through 3).

Rule 2.4 (Lawyer Serving as Third-Party Neutral), effective April 1, 2009, expressly applies to a lawyer serving as a mediator. Rule 2.4(b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them, and, when the lawyer knows or reasonably should know that a party does not understand the lawyer's role, to explain the difference between the neutral role and that of a client representative. Although the rule does not in terms require disclosing lawyer status, the committee read it to obligate the lawyer-mediator to dispel any party's confusion about the lawyer's limited role. Comment [3] explains that the potential for confusion is significant when parties are unrepresented, and that where appropriate the lawyer should explain the differences between the roles, including the inapplicability of the attorney-client evidentiary privilege (paragraphs 4 through 6).

The committee concluded that explaining the difference between the roles, or explaining the inapplicability of the privilege, will usually require disclosing that the mediator is a lawyer, and nothing in the rules prohibits such disclosure. It pointed to N.Y. State 678 (1996), which held that participants in divorce mediation are entitled to know the mediator's qualification as a lawyer and that withholding it would be deceptive. The committee held that unless all parties are represented, the lawyer-mediator must explain whatever is needed to avoid confusion about the role; if that requires revealing that the mediator is a lawyer (as it most often will), the lawyer must do so, must explain the significance of that fact, and must disclose lawyer status to all parties if it discloses to any (paragraphs 7 through 9).

In practice

The opinion holds that, under Rule 2.4 as it stood at the time, a lawyer serving as a mediator is bound by the New York Rules even where separate community-mediation Standards say otherwise, and that Rule 2.4(b)'s duty to dispel a party's confusion about the neutral role will in many cases require disclosing that the mediator is a lawyer. The committee tied the duty to the presence of unrepresented or confused parties: where all parties are represented, the duty may not be triggered, but where a party does not understand the role, the lawyer must explain the difference between a neutral and a client representative, which usually entails disclosing lawyer status. It added the consistency requirement that disclosure to one party must be made to all.

Common questions

Q: I volunteer as a community mediator. Do I have to tell the parties I'm a lawyer?

A: In many cases, yes. Rule 2.4(b) requires you to dispel a party's confusion about your neutral role, and the committee concluded that explaining the difference between a neutral and a client representative will usually require disclosing that you are a lawyer (paragraphs 6 through 8).

Q: The community mediation Standards say I don't need to disclose. Which governs?

A: For a New York lawyer, the Rules of Professional Conduct govern your conduct. The committee said it has no jurisdiction over the separate Standards but that Rule 2.4 binds all New York lawyers serving as mediators (paragraphs 2 through 3).

Q: If I tell one party I'm a lawyer, do I have to tell the others?

A: Yes. The committee concluded that if the mediator discloses lawyer status to any party, the mediator should disclose it to all parties (paragraph 8).

Background and rules framework

The opinion interprets New York Rule 2.4(a) and (b) (lawyer serving as a third-party neutral), corresponding to ABA Model Rule 2.4, read with Comment [3], which addresses the heightened risk of confusion when parties are unrepresented and the explanation of the inapplicability of the attorney-client privilege.

Citations and references

Rules of Professional Conduct:

• MR 2.4 / NY Rule 2.4(a), (b): lawyer serving as a third-party neutral; duty to clarify the role to unrepresented parties

Other opinions cited:

• N.Y. State 678 (1996): participants in divorce mediation are entitled to know the mediator is a lawyer; withholding it would be deceptive
• MEAC Opinion 2010-02: community-mediation Standards (outside the committee's jurisdiction)

See also

• NY State Bar Ethics Op. 1178: Lawyer-Mediator as Third-Party Neutral
• NY State Bar Ethics Op. 900: Assistant County Attorney as Mediator in Child Permanency Mediation
• NY State Bar Ethics Op. 1026: Lawyer-Mediator's Confidentiality Duties in a Work of Fiction

Source

• Landing page: https://nysba.org/ethics-opinion-878/