Can I, as a practicing lawyer, form a partnership with a therapist to offer family-law mediation, if we disclose to the parties that neither of us represents them?

Plain-English summary

The inquiring attorney asked whether Rule 5.4(b) prohibited a partnership between an attorney and a therapist to provide mediation services in family-law matters. Under the proposal, the attorney and the therapist would each disclose to both parties in the mediation that the attorney was acting as counsel to neither party (so that each party would need to seek independent counsel if the matter was litigated), that the therapist was counselor to neither party, that no professional privilege would protect either party's communications, and that the parties should seek independent professional guidance about any litigation.

The panel concluded that Rule 5.4(b) prohibited the arrangement. Recognizing the attorney's attempt to protect all parties, the panel reasoned that Rule 5.4(b) bars an attorney from conducting a law practice and also participating with a nonlawyer in a business capacity to provide mediation services, because the attorney would be perceived as a lawyer in rendering the mediation. Citing its Opinion 92-57, the panel noted that a lawyer who serves as a mediator is subject to the Rules and that an attorney must comply with all applicable Rules whether or not acting in a professional capacity. The panel also pointed to Rule 5.4(a), which prohibits a lawyer or law firm from sharing legal fees with a nonlawyer except in limited circumstances (a deceased lawyer's estate, completing a deceased lawyer's business, or nonlawyer-employee retirement plans), a restriction that guards against a nonlawyer's interference with a lawyer's independent professional judgment and against encouraging the unauthorized practice of law.

Currency note

This opinion was issued in 1995, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 5.4 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a lawyer form a mediation partnership with a non-lawyer professional?

A: The opinion concluded that Rule 5.4(b) bars a practicing lawyer from partnering with a nonlawyer therapist to provide mediation services, because the lawyer would be perceived as acting as a lawyer.

Q: Do the disclosures that neither professional represents the parties fix the problem?

A: No. Despite the proposed disclosures, the panel found Rule 5.4(b) prohibited the arrangement, because the attorney would still be perceived as a lawyer in rendering the mediation.

Q: Is a lawyer acting as a mediator still bound by the ethics rules?

A: Yes. The opinion, citing Opinion 92-57, stated that a lawyer who serves as a mediator is subject to the Rules and must comply whether or not acting in a professional capacity.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 5.4 (Model Rule 5.4), on the professional independence of a lawyer. Rule 5.4(a) bars sharing legal fees with a nonlawyer except in enumerated situations, and Rule 5.4(b) bars a lawyer from forming a partnership with a nonlawyer if any of the partnership's activities consist of the practice of law. The panel read the mediation partnership as one in which the lawyer would be perceived as practicing law, bringing it within Rule 5.4(b), and framed the fee-sharing restriction as protecting the lawyer's independent judgment and preventing the unauthorized practice of law.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.4 / RI RPC 5.4(a), 5.4(b) (professional independence of a lawyer; nonlawyer partnership and fee-sharing)

Other opinions cited:

• RI EAP Op. 92-57 (1992): a lawyer who serves as a mediator is subject to the Rules whether or not acting in a professional capacity

See also

• RI EAP Op. 97-05: Running an ancillary business from the law office
• RI EAP Op. 99-08: A dual law and investment-advisory practice

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2095-01.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

FINAL

ETHICS ADVISORY PANEL
OPINION # 95-1, REQUEST # 558
Issued March 6, 1995

The inquiring attorney asks whether Rule 5.4(b) prohibits a partnership between an attorney and a therapist for the purpose of providing mediation services in family law matters. The inquiring attorney states that both the attorney and therapist would specifically disclose to both parties in the mediation that the attorney was acting as counsel to neither party, and if the matter was litigated, each party would need to seek their own counsel. They would disclose to both parties that the therapist was acting as counselor to neither party, that no professional privilege would protect communications of either party and the parties would be encouraged to seek independent professional guidance concerning any litigation.

Rule 5.4 addresses the "Professional Independence of a Lawyer." That Rule states in pertinent part:

(a) A lawyer or law firm shall not share legal fees with a nonlawyer except that:

(1) an agreement by a lawyer with the lawyer's firm, partner or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or one or more specified persons;

(2) a lawyer who undertakes to complete
unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and

(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law...

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if;

EAP Opinion # 95-1, Request # 558
Page Two

(1) a nonlawyer owns any interest therein,
except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or
officer thereof; or

(3) a nonlawyer has the right to direct or
control the professional judgment of a lawyer.

The Panel recognizes the inquiring attorney's attempt to protect all parties involved. Rule 5.4(b) prohibits the attorney from conducting a law practice and also participating with a nonlawyer in a business capacity to provide mediation services. It appears to the Panel that the inquiring attorney would be perceived as a lawyer in rendering mediation services. A lawyer who serves as a mediator is subject to the Rules of Professional Responsibility. See, Ethics Advisory Panel Opinion # 92-57 (Issued July 23, 1992) where the Panel stated that "an attorney must at all times comply with all applicable Rules whether or not he/she is acting in a professional capacity."

Rule 5.4(a) prohibits a lawyer or law firm from sharing fees with a nonlawyer except in certain cases involving a deceased lawyer or for retirement plans for nonlawyer employees. This Rule avoids the possibility of a nonlawyer's interference with a lawyer's independent professional judgment and avoids encouraging nonlawyers from engaging in the unauthorized practice of law.