Can an Assistant County Attorney serve as a mediator in a case where another lawyer from the same office represents the agency, and what conflicts arise?
NY State Bar Ethics Opinion 900: Government Lawyer as Mediator
Short answer: An Assistant County Attorney may serve as a paid or unpaid mediator in a Child Permanency Mediation in which another ACA represents the county Department of Social Services, but must disclose his office connection; the ACA representing DSS may have a personal conflict imputed to the whole office unless cured by informed written consent, and the office must timely screen the mediator from any related matter.
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.
Plain-English summary
The inquirer is an Assistant County Attorney (ACA) who is also on a county roster of Permanency Mediators for Child Permanency Mediations, court-supervised mediations about the permanent placement of children in abuse and neglect cases. He does not personally represent the county Department of Social Services (DSS), but another ACA in his office does, and DSS always has an interest in these mediations. He asked three questions about serving as the neutral (paragraphs 1 through 7).
On Question A (may he mediate at all), the committee applied Rule 2.4, which governs lawyers serving as third-party neutrals. Because a mediator does not represent the parties (Rule 2.4(a)), nothing in the rules bars an ACA from mediating even when a colleague represents a party, and the paid-versus-unpaid distinction does not matter; Rule 1.7(a)(2) does not apply to the mediator because he has no client in the mediation. But Rule 2.4(b) requires him to tell unrepresented parties he is not representing them and, where they may not understand his role, to explain the difference between a neutral and an advocate. He should also disclose that he is an ACA, that a colleague from his office is participating, and that the parties may object to his serving. The committee added that other court rules or mediator codes outside the Rules of Professional Conduct may apply, and urged him to check them and consult the County Attorney (paragraphs 12 through 19).
On Question B (does his service create a conflict for the ACA representing DSS), the committee found that the presence of a fellow ACA as mediator will ordinarily create a significant risk to the DSS lawyer's professional judgment under Rule 1.7(a)(2), for example an incentive to please the colleague by settling against DSS's interest. Under Rule 1.10(a), that conflict is imputed to the whole County Attorney's Office (a "firm" under Rule 1.0(h), which includes a government law office), so it cannot be cured by swapping ACAs. It can, however, usually be cured under Rule 1.7(b) if the DSS lawyer reasonably believes she can represent DSS competently, the representation is not prohibited by law, and DSS gives informed consent confirmed in writing; if not, the office is likely to object and require the inquirer's withdrawal as mediator, which dissolves the conflict (paragraphs 20 through 24).
On Question C (screening), Rule 1.12(b) bars a lawyer who participated personally and substantially as a mediator from later representing anyone in that matter absent all parties' informed written consent, and Rule 1.12(d) bars others in the firm from the matter unless the disqualified lawyer is timely and effectively screened, gets no part of the fee, and written notice is given, with no other appearance of impropriety. Because "matter" is defined broadly (Rule 1.0(l)), the office must screen the inquirer from the related Family Court case from the moment he begins mediating; otherwise the parties and public have no assurance he has not shared confidences in either direction, which would usually create an appearance of impropriety. The committee expressed no view on whether the Rule 1.11(d) rule of necessity might excuse this, noting that is a question of law and that Rule 1.12 contains no equivalent (paragraphs 25 through 29).
In practice
The opinion holds that, under New York Rules 2.4, 1.7, 1.10, and 1.12 as they stood at the time, a government lawyer may serve as a mediator alongside a colleague who represents a party, but three things follow. The mediator must make the Rule 2.4(b) disclosures to unrepresented parties and should additionally disclose his office connection and the parties' right to object. The colleague representing DSS ordinarily has a Rule 1.7(a)(2) personal conflict that is imputed across the office under Rule 1.10(a) and is curable only by DSS's informed written consent (or by the mediator's withdrawal). And the office must, from the moment the mediation begins, timely and effectively screen the mediator from the related Family Court matter under Rule 1.12(d) and consider whether any appearance of impropriety remains. The committee noted the inquirer should also check court rules and mediator codes outside the conduct rules and consult the County Attorney.
Common questions
Q: I'm a government lawyer. Can I serve as a mediator when a colleague from my office represents a party?
A: Yes. The committee found nothing in Rule 2.4 or elsewhere barring it, because a mediator does not represent the parties; the paid-versus-unpaid distinction does not change the answer (paragraphs 12 through 14, 18).
Q: What must I disclose as the mediator?
A: Under Rule 2.4(b) you must tell unrepresented parties you do not represent them and, where they may not understand your role, explain the difference between a neutral and an advocate. The committee said you should also disclose that you are an ACA, that a colleague is participating, and that parties may object (paragraphs 16 through 17).
Q: Does my mediating create a conflict for my colleague who represents the agency?
A: Ordinarily yes. The committee found a significant risk to that lawyer's judgment under Rule 1.7(a)(2), imputed to the whole office under Rule 1.10(a), curable by the agency's informed written consent under Rule 1.7(b) or by your withdrawal as mediator (paragraphs 20 through 24).
Q: Must the office screen me from the related case?
A: Yes. Once you participate personally and substantially as mediator, Rule 1.12(b) bars you from the matter absent all parties' consent, and Rule 1.12(d) requires the office to screen you, deny you any fee, and give written notice; without timely screening an appearance of impropriety would usually preclude the office's continued representation (paragraphs 25 through 29).
Background and rules framework
The opinion interprets New York Rule 2.4 (lawyer serving as a third-party neutral, including the (a) definition and the (b) disclosure duties), Rule 1.7(a)(2) and (b) (personal-interest conflicts and their cure), Rule 1.10(a) (imputation within a firm, with "firm" defined in Rule 1.0(h) to include a government law office), and Rule 1.12(b) and (d) (former neutrals and firm screening). It also references Rule 1.11(d) (the public-officer rule of necessity) and the broad definition of "matter" in Rule 1.0(l). These correspond to ABA Model Rules 2.4, 1.7, 1.10, 1.11, and 1.12.
Citations and references
Rules of Professional Conduct:
- MR 2.4 / NY Rule 2.4(a), (b): lawyer as third-party neutral; disclosure to unrepresented parties
- MR 1.7 / NY Rule 1.7(a)(2), (b): personal-interest conflict and its cure
- MR 1.10 / NY Rule 1.10(a) and 1.0(h): imputation; "firm" includes a government law office
- MR 1.12 / NY Rule 1.12(b), (d): former mediator's bar; firm screening
- MR 1.11 / NY Rule 1.11(d): public-officer rule of necessity (no opinion expressed)
- NY Rule 1.0(e), (j), (l): definitions of confirmed-in-writing, informed consent, and "matter"
Other opinions cited:
- N.Y. State 800 (2006): DSS and parents are adverse in Family Court child-protective proceedings
- N.Y. City 1999-6: the identity of a government lawyer's client is a question of law
- N.Y. City 2009-2: high rate of unrepresented litigants in Family Court
See also
- NY State Bar Ethics Op. 1178: A Lawyer-Mediator as a Third-Party Neutral
- NY State Bar Ethics Op. 1064: Former Judge Conflict and Firm Screening
- NY State Bar Ethics Op. 1065: Part-Time Prosecutor's Firm Suing a Separate Village
Source
- Landing page: https://nysba.org/ethics-opinion-900/