After mediating a divorce, can the lawyer-mediator draft the petitions and decree for the parties to file?
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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Plain-English summary
The Board addressed whether, after a domestic relations mediation and the required mediation report, a lawyer-mediator may prepare the legal documents (petitions, decrees, separation agreements, shared parenting plans, support worksheets, and similar filings) for one or both of the parties. The opinion applies to a lawyer-mediator employed by or receiving referrals from a court, and to a private lawyer-mediator who mediates before court involvement. The Board emphasized that a domestic relations lawyer-mediator is an impartial third-party neutral, not counsel to either party, and that under Rule 2.4(b) the mediator must tell unrepresented parties the mediator does not represent them; preparing and filing the mediation report itself is an accepted part of the process and not at issue.
The Board concluded that drafting the legal documents goes beyond the report and amounts to a legal representation after the mediation, governed by Rule 1.12 (former third-party neutral) and Rule 1.7(c). Under Rule 1.7(c)(2), the lawyer-mediator may not provide private legal representation to both parties in the same domestic relations proceeding. The lawyer-mediator may represent one party, however, if five conditions are met: (1) under Rule 1.12(b), the mediator did not negotiate for the later representation during the mediation; (2) under Rule 1.12(a), both parties give informed consent confirmed in writing; (3) under R.C. 102.03(A)(1) applied through Rule 1.7(c)(1), a court-employed lawyer-mediator does not represent a party in a matter in which the mediator personally participated, during employment and for one year after; (4) under Rule 4.3, if one party is unrepresented, the mediator who represents the other must deal properly with the unrepresented party; and (5) the mediator complies with any applicable standards of practice for mediators. The Board surveyed out-of-state authority and agreed with the Utah opinion (Utah State Bar Op. 05-03) that a lawyer-mediator may not represent both parties to obtain a divorce.
In practice
The opinion holds that, under the Ohio Rules as they stood at the time of the opinion, a lawyer-mediator's post-mediation drafting of legal documents is a subsequent legal representation, not part of the neutral's role, and is governed by Rule 1.12 and Rule 1.7(c). Per the opinion, representing both parties is barred by Rule 1.7(c)(2), while representing one party is permitted only if the mediator did not solicit the engagement during mediation (Rule 1.12(b)), both parties give informed written consent (Rule 1.12(a)), a court-employed mediator honors the R.C. 102.03 one-year limit through Rule 1.7(c)(1), the mediator complies with Rule 4.3 toward any unrepresented party, and the mediator follows applicable mediator standards. The opinion treats preparation and filing of the mediation report itself as uncontroversial and outside this analysis.
Common questions
Q: After mediating a divorce, can the lawyer-mediator draft the petition and decree for both spouses to file?
A: No. The opinion concluded that under Rule 1.7(c)(2), a lawyer-mediator may not prepare the legal documents for both parties in the same domestic relations proceeding.
Q: Can the lawyer-mediator instead draft the documents for just one spouse?
A: The opinion concluded yes, but only if five conditions are met, including that the mediator did not negotiate for the representation during the mediation and both parties give informed written consent.
Q: Does it matter if the lawyer-mediator works for the court?
A: Yes. The opinion concluded that under R.C. 102.03(A)(1), applied through Rule 1.7(c)(1), a court-employed lawyer-mediator may not represent a party in a matter in which the mediator personally participated, during employment and for one year afterward.
Q: Is drafting the mediation report itself a problem?
A: No. The opinion treated preparation and filing of the mediation report as an accepted part of the mediation process and not in dispute.
Background and rules framework
The opinion interprets Ohio Prof. Cond. R. 1.12 (former judge, arbitrator, mediator, or other third-party neutral), Rule 1.7(c) (non-consentable conflicts), Rule 2.4 (lawyer serving as a third-party neutral, including Comment [4]), and Rule 4.3 (dealing with an unrepresented person) (Model Rules 1.12, 1.7, 2.4, 4.3). It applies these alongside Ohio Ethics Law (R.C. 102.03(A)) and the Rules of Superintendence and Model Standards of Practice for Family and Divorce Mediation appended to Sup. R. 16.
Citations and references
Rules of Professional Conduct:
- Ohio Prof. Cond. R. 1.12(a), (b); R. 1.7(c)(1), (2); R. 2.4 and Comment [4]; R. 4.3 (Model Rules 1.12, 1.7, 2.4, 4.3)
Statutes and court rules:
- Ohio Rev. Code 102.03(A)(1) (one-year post-employment representation bar for public employees); R.C. 3109.052 (court-ordered domestic relations mediation)
- Ohio Sup. R. 16 and appended Model Standards of Practice for Family and Divorce Mediation
Other opinions cited:
- Utah State Bar Op. 05-03 (2005) (agreed with): lawyer-mediator may not represent both parties to obtain a divorce
- Arizona Op. 96-01; Michigan Op. RI-278 (1996); Massachusetts Bar Assn. Op. 85-3 (1985); Maine Bd. of Overseers Op. 137 (1993)
See also
- Ohio BPC Op. 2001-005: Court-Employed Mediator and Private Fee-Paid Mediation
- Ohio BPC Op. 1990-015: Lawyer as Labor Arbitrator Subject to the Code
- Ohio BPC Op. 2007-004: City Law Director's Conflicts of Interest
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_09-004.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2009-4
Issued June 12, 2009
[Note the erratum on page 3, paragraph 2, where the sentence beginning with “The family
mediator assists communication” is stated twice instead of once.]
SYLLABUS: Upon conclusion of domestic relations mediation, a lawyer-
mediator may not, pursuant to Prof. Cond. Rule 1.7(c)(2), prepare necessary
legal documents, such as petitions, decrees, and ancillary documents, for filing
by or on behalf of both of the parties in a domestic relations proceeding. Upon
conclusion of domestic relations mediation, a lawyer-mediator may prepare
necessary legal documents, such as petitions, decrees, and ancillary documents,
for filing by or on behalf of one of the parties to a domestic relations proceeding,
provided the following conditions are met. First, as required by Prof. Cond. R.
1.12(b), during mediation, a lawyer-mediator must not negotiate to subsequently
represent one of the parties. Second, as required by Prof. Cond. R. 1.12(a), both
parties must give informed consent, confirmed in writing to a lawyer-mediator’s
subsequent representation of one of the parties. Third, as required by R.C.
102.03(A)(1) and through application of Prof. Cond. R. 1.7(c)(1), during
employment or for one year after employment with the court, a lawyer-mediator
who is a court employee must not undertake a representation in a matter in
which he or she personally participated. Fourth, as required by Prof. Cond. R.
4.3, if one party is unrepresented, a lawyer-mediator who subsequently
represents the other party, must properly deal with the unrepresented party.
Fifth, a lawyer-mediator who undertakes a subsequent legal representation must
comport with any applicable standards of practice for mediators.
OPINION: This opinion addresses a question regarding the ethical propriety of a
lawyer-mediator at the conclusion of a domestic relations mediation drafting legal
documents for one or both parties in a domestic relations proceeding.
Upon conclusion of domestic relations mediation, may a lawyer-
mediator, in addition to preparing a mediation report, prepare
necessary legal documents, such as petitions, decrees, and
ancillary documents, for filing by or on behalf of one or both of the
parties in a domestic relations proceeding?
Op. 2009-4 2
Introduction
This opinion addresses only the conduct of a lawyer-mediator in domestic
relations mediation. The opinion applies to a lawyer-mediator employed by a
court or to whom the court makes referrals, but also is applicable to a lawyer-
mediator in private practice who provides mediation prior to a court’s involvement
in a domestic relations matter.
For purposes of this opinion, domestic relations mediation is a general reference
to mediation ordered by a court in connection with a proceeding for divorce,
dissolution, legal separation, annulment, or the allocation of parental rights and
responsibilities; or to mediation concerning divorce, dissolution, legal separation,
annulment, or the allocation of parental rights and responsibilities that is entered
into prior to the filing of any court proceedings.
Domestic relations mediation has strong roots in both Ohio law and Ohio court
rules. Ohio law provides in R.C. 3109.052 that “[i]f a proceeding for divorce,
dissolution, legal separation, annulment, or the allocation of parental rights and
responsibilities for the care of a child involves one or more children, if the parents
of the children do not agree upon an appropriate allocation of parental rights and
responsibilities for the care of their children or do not agree upon a specific
schedule of parenting time for their children, the court may order the parents to
mediate their differences on those matters in accordance with the mediation
procedures adopted by the court by local rule.”1
The Rules of Superintendence for the Courts of Ohio require that “[a] division of a
court of common pleas, municipal court, and county court shall consider, and
may adopt, a local rule providing for mediation.”2 Accordingly, local court rules
for domestic relations mediation abound.3
A domestic relations mediator may be either a lawyer-mediator or a non-lawyer
mediator. The general qualifications and training of a domestic relations
mediator are set forth in the superintendence rules and must be included in the
adoption of any local court rule.4
Domestic relations lawyer-mediator is a third party neutral, not legal
counsel
1 Ohio Rev. Code Ann. § 3109.052 (West 2005).
2 Sup.R. 16(A)
3 See e.g., Loc.R. 32 of the Cuyahoga County Common Pleas Court Domestic Relations Division;
Loc.R. 22 of the Franklin County Common Pleas Court Domestic Relations Division; Loc.R. 2.8 of
the Hamilton County Common Pleas Court Domestic Relations Division; Loc.R. 14 of the Lake
County Common Pleas Court Domestic Relations Division; Loc. R. 18 of the Lucas County
Common Pleas Court Domestic Relations Division; Loc. R. 37 of the Mahoning County Common
Pleas Court Domestic Relations Division.
4 Sup.R. 16(C)(1)
Op. 2009-4 3
In domestic relations mediation, a domestic relations lawyer-mediator is not legal
counsel to either or both parties to the mediation. A domestic relations lawyer-
mediator is an impartial facilitator.
The Model Standards of Practice for Family and Divorce Mediation as appended
to Sup R. 16 explain that “[f]amily and divorce mediation (‘family mediation’ or
‘mediation’) is a process in which a mediator, an impartial third party, facilitates
the resolution of family disputes by promoting the participants’ voluntary
agreement. The family mediator assists communication, encourages
understanding and focuses the participants on their individual and common
interests. The family mediator assists communication, encourages
understanding and focuses the participants on their individual and common
interests. The family mediator helps the participants to explore options, make
decisions and reach their own agreements. . . . Family mediation is neither a
substitute for the need for family members to obtain independent legal advice or
counseling or therapy, nor is it appropriate for all families.”
Sup. R 16(B)(1)(c) requires that a court’s local mediation rule provides
procedures for encouraging appropriate referrals to legal counsel. Additionally,
Sup. R. 16(D) is an aspirational standard suggesting, among other things, that
each court division that adopts a local rule for domestic relations mediation shall
encourage a mediator’s compliance with the Model Standards of Practice for
Family and Divorce Mediation as appended to the rule. Standard III(A)(4)
reminds a family mediator that before mediation begins, a mediator shall inform
participants they may obtain independent advice from attorneys, counsel,
advocates, accountants, therapists or other professionals during the mediation
process.
The Ohio Rules of Professional Conduct acknowledges, in Prof. Cond. Rule 2.4,
the role of a lawyer-mediator as a third party neutral. Prof. Cond. Rule 2.4(b)
requires a lawyer-mediator to inform unrepresented clients that the lawyer-
mediator does not represent them.
RULE 2.4: LAWYER SERVING AS ARBITRATOR, MEDIATOR,
OR THIRD-PARTY NEUTRAL
(a) A lawyer serves as a third-party neutral when the lawyer assists
two or more persons who are not clients of the lawyer to reach a
resolution of a dispute or other matter that has arisen between
them. Service as a third-party neutral may include service as an
arbitrator, a mediator, or in such other capacity as will enable the
lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform
unrepresented parties that the lawyer is not representing them.
Op. 2009-4 4
When the lawyer knows or reasonably should know that a party
does not understand the lawyer’s role in the matter, the lawyer shall
explain the difference between the lawyer’s role as a third-party
neutral and a lawyer’s role as one who represents a client.
Preparation of a mediation report
The ethical propriety of a lawyer-mediator in a domestic relations mediation
preparing and filing a mediation report is not in dispute. A mediation report is an
acknowledged part of a mediation process. A mediation report provides a
summary of the contents and details of an agreement if reached. But, a court is
not bound by such agreement.
R.C. 3109.052(B) requires that if a mediation order is issued by a court and the
order requires the parents to file a mediation report, “the mediator and each
parent who takes part in mediation in accordance with the order jointly shall file a
report of the results of the mediation process with the court that issued the order
under the division. A mediation report shall indicate only whether the agreement
has been reached on any of the issues that were the subject of the mediation,
and, if agreement has been reached, the content and details of the agreement.
No mediation report shall contain any background information concerning the
mediation process or any information discussed or presented in the process.
The court shall consider the mediation report when it allocates parental rights
and responsibilities for the care of children under section 3109.04 of the Revised
Code and when it establishes a specific schedule of parenting time under section
3109.51 of the Revised Code. The court is not bound by the mediation report
and shall consider the best interest of the children when making that allocation or
establishing the parenting time schedule.”5
Local court rules also provide for the preparation of a mediation report, although
the report is sometime referred to in different terms, such as mediator report,
summary of agreement, or agreement.6 Some local court rules explicitly provide
5 Ohio Rev. Code Ann. § 3109.052(B) (West 2005).
6 See e.g. Loc.R. 32(C) of the Cuyahoga County Common Pleas Court Domestic Relations
Division (“Within seventy (70) days of date of order referring the parties to mediation or upon the
termination of mediation, whichever is sooner, the parties and the mediator shall jointly file a
mediation report pursuant to Section 3109.052(b) O.R.C. Any agreement reached during
mediation shall not be binding upon the parties until approved by the Court, which shall consider
the best interests of the children when allocating parental rights and responsibilities and
establishing a possessory schedule.”); Loc.R. 22 of the Franklin County Common Pleas Court
Domestic Relations Division (“Upon conclusion of the mediation, the mediator shall notify
Mediation Services whether the mediation occurred or was terminated, the parties reached an
agreement on all or some issues, and the attendance of the parties.”); Loc.R. 2.8(C)(9) of the
Hamilton County Common Pleas Court Domestic Relations Division (“Mediator Report—At the
conclusion of the mediation, the mediator shall inform the court of the status of the mediation
including all of the following: Whether the mediation occurred or was terminated; Whether an
agreement was reached on some, all or none of the issues; and Attendance of the Parties.”).
Op. 2009-4 5
for the mediation report, upon approval, to become incorporated into an Entry or
an Order of the court.7
Preparation of other necessary legal documents for filing in a domestic
relations proceeding
At issue is whether upon completion of a domestic relations mediation and
preparation of a mediation report, a lawyer-mediator may prepare necessary
legal documents, such as petitions, decrees, and ancillary documents, for filing
by or on behalf of one or more of the parties to a domestic relations proceeding.
Examples of these documents might be a Separation Agreement, Shared
Parenting Plan, Petition for Dissolution of Marriage and Decree for Dissolution of
Marriage, Ohio Child Support Guidelines Worksheets.
A domestic relations lawyer-mediator who goes beyond preparing the mediation
report, which is required of the mediator by law and rule, into the preparation of
necessary legal documents for filing by or on behalf of the parties to a domestic
relations proceeding is engaging in a legal representation subsequent to the
mediation.
A lawyer-mediator’s subsequent legal representation of a party to mediation is
addressed in the Ohio Rules of Professional Conduct, generally in Comment [4]
to Prof. Cond. Rule 2.4, and specifically in Prof. Cond. R. 1.12.
Comment [4] to Prof. Cond. Rule 2.4 explains that “[a] lawyer who serves as a
third-party neutral subsequently may be asked to serve as a lawyer representing
a client in the same matter. The conflicts of interest that arise for both the
individual lawyer and the lawyer’s law firm are addressed in Rule 1.12.”
7 See e.g. Loc.R. 14.03(A) and (B) of the Lake County Common Pleas Court Domestic Relations
Division (Under 14.03(A), “[a]n agreement reached in mediation shall be reduced to writing by the
mediator and signed by the parties. Any agreement reached during mediation shall not be
binding upon the parties until approved by the Court, which shall consider the best interests of the
children.” Under 14.03(B), “[i]f the agreement is approved by the attorneys and adopted by the
Court, counsel for Plaintiff or movant (if post decree), or the Plaintiff or movant if unrepresented,
shall submit an Entry to the Court incorporating the agreement and containing all language
required to conform with the Local Rules of Court. The Entry may be in the form of a Final
Decree or a separate Agreed Judgment Entry. . . . If no agreement is reached, the mediator shall
issue a report stating only that no agreement was reached.”); Loc. R. 18.01 and 18.02 of the
Lucas County Common Pleas Court Domestic Relations Division (Under 18.01(B)(2) the mediator
shall “[p]rovide to the parents and their attorneys a summary of any agreement reached or a
statement that the mediation has been terminated without an agreement.” Under 18.02,
“Mediation Agreements become an Order of the Court after review and approval of each party’s
attorney, if applicable, and journalization by the Court.); Loc. R. 37.01 and 37.03 of the Mahoning
County Common Pleas Court Domestic Relations Division (Under 37.01 the mediator shall
“[p]rovide to the parties and their attorneys a summary of any agreement reached or a statement
that the mediation has been terminated without agreement” Under 37.03, “[a]greements reached
by the parties during mediation shall become an order of the Court after review and approval by
each parties’ attorney and journalization by the Court.”)
Op. 2009-4 6
Prof. Cond R. 1.12 sets the ethical boundaries of subsequent representation by a
mediator.
RULE 1.12: FORMER JUDGE, ARBITRATOR, MEDIATOR,
OR OTHER THIRD-PARTY NEUTRAL
(a) Except as stated in division (d), a lawyer shall not represent
anyone in connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative officer
or law clerk to such a person or as an arbitrator, mediator, or other
third-party neutral, unless all parties to the proceeding give
informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person
who is involved as a party or as lawyer for a party in a matter in
which the lawyer is participating personally and substantially as a
judge or other adjudicative officer or as an arbitrator, mediator, or
other third-party neutral. A lawyer serving as a law clerk to a judge
or other adjudicative officer may negotiate for employment with a
party or lawyer involved in a matter in which the clerk is
participating personally and substantially, but only after the lawyer
has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by division (a), no lawyer in a firm with
which that lawyer is associated may knowingly undertake or
continue representation in the matter unless both of the following
apply:
(1) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the
fee therefrom;
(2) written notice is promptly given to the parties and any
appropriate tribunal to enable them to ascertain compliance
with the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember
arbitration panel is not prohibited from subsequently representing
that party.
By application, Prof. Cond. Rule 1.12 does not bar a lawyer-mediator, after
completion of mediation and submission of mediation report to the court, from
subsequent legal representation of a party provided that during the mediation the
lawyer-mediator did not negotiate for the employment and both parties give
Op. 2009-4 7
informed consent, confirmed in writing; however, Prof. Cond. Rule 1.7(C) and
Ohio Ethics Law provide applicable restrictions that must be heeded.
Rule 1.7(C)
Even if each affected client consents, the lawyer shall not accept or
continue the representation if either of the following applies:
(1) the representation is prohibited by law;
(2) the representation involves the assertion of a claim by
one client against another client represented in the same
proceeding.
Under Prof. Cond. Rule 1.7(C)(2), a lawyer-mediator, upon completion of a
mediation, is prohibited from providing private legal representation to both parties
in the same domestic relations proceeding.
Under Prof. Cond. Rule 1.7(C)(1) a representation that is prohibited by Ohio
Ethics Law or other law is improper. A judicial employee, such as court
employed domestic relations lawyer-mediator, is subject to Ohio Ethics Law. R.C
102.03(A) states that “[n]o present or former public official or employee shall,
during public employment or for twelve months thereafter, represent a client or
act in a representative capacity for any person on any matter in which the public
official or employee personally participated as a public official or employee
through decision, approval, disapproval, recommendation, the rendering of
advice, investigation, or other substantial exercise of administrative discretion.”
Thus, pursuant to R.C. 102.03(A), during employment and for one year following
employment by the court, a court employee domestic relations lawyer-mediator
who mediates a domestic relations matter is prohibited from providing legal
representation in the domestic relations proceeding connected to the mediation.
A lawyer mediator’s subsequent legal representation of one person to the
mediation requires great caution when the other person is unrepresented. Rule
4.3 addresses the ethical requirements.
RULE 4.3: DEALING WITH UNREPRESENTED PERSON
In dealing on behalf of a client with a person who is not represented
by counsel, a lawyer shall not state or imply that the lawyer is
disinterested. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the lawyer’s role in
the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an
unrepresented person, other than the advice to secure counsel, if
the lawyer knows or reasonably should know that the interests of
Op. 2009-4 8
such a person are or have a reasonable possibility of being in
conflict with the interests of the client.
Finally, a lawyer-mediator in a domestic relations proceeding should not
undertake a subsequent legal representation that does not comport with any
applicable standards of practice for mediators.
Advisory opinions outside Ohio
In Arizona, the state bar ethics committee was unable to reach consensus on
whether or not attorney-mediators may prepare pleadings for mediation
participants.8
In Michigan, the state bar ethics committee advised “[t]he lawyer mediator is not
per se prohibited from preparing pleadings for purposes of implementation of the
memorandum of understanding. However, any activity in this regard would be
construed as legal services by a lawyer, not mediation, and would necessarily
invoke MRPC 1.7, 2.2, and other ethics duties.”9
In Massachusetts, the state bar ethics committee advised that “[a]n attorney may
also represent both parties in drafting a separation agreement, the terms of
which are arrived at through mediation, but must advise the parties of the
advantages of having independent legal counsel review any such agreement,
and must obtain the informed consent of the parties to such joint
representation.”10
In Maine, the board of overseers of the bar advised “a lawyer-mediator operating
under the constraints of Maine Bar Rule 3.4(h) may prepare document ancillary
to a settlement agreement, such as a divorce judgment, promissory note, and
deed, provided such documents merely reflect the parties’ resolution of the
matter and all of the other condition of rule 3.4(h) have been satisfied.”11
In Utah, the state bar ethics committee advised that “[w]hen a lawyer-mediator,
after a successful mediation, drafts the settlement agreement, complaint and
other pleadings to implement the settlement and obtain a divorce for the parties,
the lawyer-mediator is engaged in the practice of law and attempting to represent
opposing parties in litigation. A lawyer may not represent both parties following a
mediation to obtain a divorce for the parties.”12
This Board agrees with the advice offered in the Utah opinion.
8
Arizona State Bar, Op. 96-01 (1996).
9
Michigan Bar, Op. RI 278 (1996).
10
Massachusetts Bar Assn. Op. 85-3 (1985).
11
Maine, Bd of Overseers of the Bar, Op. 137 (1993).
12
Utah State Bar, Op. 05-03 (2005).
Op. 2009-4 9
Conclusion
In conclusion, this Board advises as follows. Upon conclusion of domestic
relations mediation, a lawyer-mediator may not, pursuant to Prof. Cond. Rule
1.7(c)(2), prepare necessary legal documents, such as petitions, decrees, and
ancillary documents, for filing by or on behalf of both of the parties in a domestic
relations proceeding. Upon conclusion of domestic relations mediation, a lawyer-
mediator may prepare necessary legal documents, such as petitions, decrees,
and ancillary documents, for filing by or on behalf of one of the parties to a
domestic relations proceeding, provided the following conditions are met. First,
as required by Prof. Cond. R. 1.12(b), during mediation, a lawyer-mediator must
not negotiate to subsequently represent one of the parties. Second, as required
by Prof. Cond. R. 1.12(a), both parties must give informed consent, confirmed in
writing to a lawyer-mediator’s subsequent representation of one of the parties.
Third, as required by R.C. 102.03(A)(1) and through application of Prof. Cond. R.
1.7(c)(1), during employment or for one year after employment with the court, a
lawyer-mediator who is a court employee must not undertake a representation in
a matter in which he or she personally participated. Fourth, as required by Prof.
Cond. R. 4.3, if one party is unrepresented, a lawyer-mediator who subsequently
represents the other party, must properly deal with the unrepresented party.
Fifth, a lawyer-mediator who undertakes a subsequent legal representation must
comport with any applicable standards of practice for mediators.
Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective or
hypothetical questions regarding the application of the Supreme Court
Rules for the Government of the Bar of Ohio, the Supreme Court Rules for
the Government of the Judiciary, the Ohio Rules of Professional Conduct,
the Code of Judicial Conduct, and the Attorney’s Oath of Office. Pursuant
to Section 102.08 of the Ohio Revised Code, the requester of the opinion
may reasonably rely on the opinion as it applies to Ohio Ethics Law and
related statutes.
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