Ezel / Ethics Opinions / NYSBA
NYSBA 2014-03-28

Can a lawyer who works as a marital mediator refer the couples to the lawyer's spouse, a psychiatrist, for free counseling sessions?

Short answer: Yes. As a third-party neutral the mediator is not representing clients, so Rule 1.7's personal-interest conflict rule does not apply; but the lawyer must tell the parties the lawyer does not represent them (Rule 2.4(b)) and, under Rule 8.4(c), should disclose that the psychiatrist is the lawyer's spouse and that two free sessions may not resolve everything.
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 Not binding precedent.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 999: Marital Mediator Referring Couples to a Spouse

Short answer: A lawyer who works exclusively as a marital mediator may refer the couples to the lawyer's spouse, a psychiatrist offering two free couples-counseling sessions, because as a third-party neutral the lawyer is not representing clients and Rule 1.7 does not apply; the lawyer must inform the parties under Rule 2.4(b) that the lawyer does not represent them, and under Rule 8.4(c) should disclose the spousal relationship and that the free sessions may not resolve every issue.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York 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

A lawyer worked exclusively in marital mediation, with the stated goal of helping couples resolve problems and stay together. The lawyer's spouse, a psychiatrist, volunteered to provide two free couples-counseling sessions to the mediating couples. The lawyer asked whether referring couples to the spouse was ethical.

The opinion concludes the referral is permissible subject to certain cautions. Under Rule 2.4(a), a lawyer serving as a third-party neutral assists people who are not the lawyer's clients to resolve a dispute; because the mediator is not representing clients, the personal-interest conflict rule of Rule 1.7, which applies only to client representation, does not apply. The mediator must, however, comply with Rule 2.4(b) by informing the unrepresented parties that the lawyer does not represent them and explaining the difference between the neutral role and representing a client if a party appears not to understand it.

The opinion identifies a disclosure concern under Rule 8.4(c), which bars conduct involving dishonesty, fraud, deceit, or misrepresentation. Because the lawyer could derive an indirect benefit from fees the spouse charges for work beyond the two free sessions, Rule 8.4(c) may require the mediator to disclose clearly that the psychiatrist is the lawyer's spouse and that the two free sessions might not resolve every issue. The opinion also reminds the inquirer that a lawyer-neutral, although not representing a client, may still be practicing law, so other Rules can apply.

In practice

Under this opinion, a lawyer acting as a marital mediator may make the referral to a psychiatrist spouse, with disclosure. The opinion holds that the analysis turns on the mediator's role as a third-party neutral rather than a representative: Rule 1.7 does not govern because there is no client. The affirmative duties the opinion identifies are the Rule 2.4(b) duty to clarify the non-representative role and the Rule 8.4(c) duty to make honest disclosures about the spousal relationship and the limits of the free sessions so the arrangement is not deceptive.

Common questions

Q: Does a lawyer-mediator have a conflict of interest under Rule 1.7 when referring couples to a spouse?

A: No. The opinion concludes Rule 1.7 applies only to client representation, and a mediator serving as a third-party neutral under Rule 2.4(a) is not representing the parties, so the personal-interest conflict rule does not apply.

Q: What must the lawyer-mediator tell the couples?

A: Under Rule 2.4(b), the lawyer must inform the unrepresented parties that the lawyer is not representing them, and must explain the difference between the neutral role and representing a client if a party seems not to understand it.

Q: Does the lawyer have to disclose that the psychiatrist is the lawyer's spouse?

A: The opinion indicates Rule 8.4(c) may require it. Because the lawyer could indirectly benefit from fees the spouse charges beyond the free sessions, the lawyer should disclose the spousal relationship and that two free sessions may not resolve every issue.

Background and rules framework

The opinion applies New York Rule 2.4 (Model Rule 2.4 on a lawyer serving as a third-party neutral): Rule 2.4(a) defines the neutral role, and Rule 2.4(b) requires informing unrepresented parties that the lawyer does not represent them. It explains that Rule 1.7 (Model Rule 1.7 on concurrent conflicts) is limited to client representation and so does not apply to a non-representational mediation. Rule 8.4(c) (Model Rule 8.4(c) on dishonesty and misrepresentation) supplies the disclosure concern. The opinion notes that a lawyer-neutral may still be practicing law, so other Rules can apply (citing N.Y. State 979 (2013) and N.Y. State 678 (1996)).

Citations and references

Rules of Professional Conduct:

  • New York RPC 2.4(a), (b) (lawyer serving as a third-party neutral; cf. Model Rule 2.4)
  • New York RPC 1.7 (concurrent conflicts; held inapplicable to a non-representational mediation; cf. Model Rule 1.7)
  • New York RPC 8.4(c) (dishonesty, fraud, deceit, misrepresentation; cf. Model Rule 8.4(c))

Other opinions cited:

  • N.Y. State 979 (2013): a lawyer-neutral may still be practicing law
  • N.Y. State 678 (1996): application of other Rules to a lawyer acting as a neutral

See also

Source