Can a non-practicing lawyer go into business with a non-lawyer offering divorce mediation services to the public?

Currency note

This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions, including the Board's own opinions on lawyer participation in divorce mediation, may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

A non-practicing lawyer asked about the propriety of acting as a divorce mediator together with a non-lawyer, in a business offering mediation services to the public.

The opinion explained that Disciplinary Rule 3-103 bars a lawyer from forming a partnership with a non-lawyer if any of the partnership's activities consists of the practice of law, and it quoted Ethical Considerations 3-4 and 3-5 for the proposition that the public interest requires professional legal judgment to be exercised only by lawyers subject to the profession's regulation. It then analyzed the proposed mediation service: the mediators would help individuals dissolve a marriage through non-adversarial decision-making aimed at a mutual agreement on division of real and personal property, spousal support, child support, custody, and visitation. The mediators would not represent either party individually, would tell participants they do not provide legal advice or legal services, and would encourage participants to retain independent counsel at the outset, with any resulting agreement submitted to attorneys for legal drafting and execution.

Despite those disclaimers, the opinion concluded that divorce mediation as described constitutes the practice of law, reasoning that divorce has always been of special concern to the state as part of the administration of justice, a function of the courts. It therefore held that it is a violation of Disciplinary Rule 3-103 for a non-practicing lawyer to engage with a non-lawyer in the business of offering divorce mediation services to the public. One committee member dissented.

Common questions

Q: Is divorce mediation considered the practice of law under this opinion?

A: Yes. The opinion states "divorce mediation as described herein constitutes the practice of law" because "the divorce process has always been of special concern to the state and, as such, an integral part of the administration of justice which is a function of the courts."

Q: Can a lawyer go into a mediation business with a non-lawyer if the mediators say they don't give legal advice?

A: Not under this opinion. Even though the described service told participants "the mediators do not and will not provide legal advice or legal services" and encouraged them to retain independent counsel, the opinion still held it "a violation of Disciplinary Rule 3-103 for a non-practicing lawyer to engage with a non-lawyer in the business of offering divorce mediation services to the public."

Q: Was this decision unanimous?

A: No. The opinion is signed by two committee members with one dissent noted: "Dissenting: G. Wilson Horde."

Background and rules framework

The opinion applied Disciplinary Rule 3-103 of the Tennessee Code of Professional Responsibility, which prohibited lawyer-nonlawyer partnerships that include the practice of law, together with Ethical Considerations 3-4 and 3-5 on the boundaries of the practice of law. The modern correlates are Model Rule 5.5 (unauthorized practice of law) and Model Rule 5.4 (professional independence of a lawyer), noted here as navigational cross-references rather than rules the opinion itself applied. Later Board opinions, including 90-F-124 and 93-F-130, revisited whether and how lawyers may participate in divorce mediation.

Citations and references

Rules of Professional Conduct:

• DR 3-103 (partnership with a non-lawyer including practice of law) and EC 3-4, EC 3-5, Tennessee Code of Professional Responsibility
• Model Rule 5.5 (unauthorized practice of law) and Model Rule 5.4 (professional independence of a lawyer), modern correlates

See also

• Tenn. Ethics Op. 90-F-124: Co-Mediation With a Non-Lawyer and Whether Divorce Mediation Is the Practice of Law
• Tenn. Ethics Op. 93-F-130: Bar-Association Divorce Mediation Program
• Tenn. Ethics Op. 85-F-98: Mediation Sponsored by a Christian Organization
• AZ Ethics Op. 96-01: Mediation; Divorce

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-39

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

83-F-39 - Partnership with Non-Lawyer

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-39

Inquiry is made concerning the propriety of a non-practicing lawyer acting as a divorce mediator and engaging with a non-lawyer in the business of offering mediation services to the public.

Disciplinary Rule 3-103 of the Code of Professional Responsibility prohibits a lawyer from forming a partnership with a non-lawyer if any of the activities of the partnership consists of the practice of law. Other provisions of the Code are applicable as contained in the following Ethical Considerations:

EC 3-4. A layman who seeks legal services often is not in a position to judge whether he will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer unless he is subject to the regulations of the legal profession.

EC 3-5. It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and, thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.

Thus, the threshold question presented in this inquiry is whether or not divorce mediation constitutes the practice of law.

An analysis of the proposed mediation service is necessary. It appears that the service offered is to assist individuals in dissolving a marriage whereby the individuals share in non-adversarial decision making process with an objective of reaching a mutual agreement in matters involving division of real and personal property, spousal support, child support, child custody and visitation rights. The mediators do not represent either party individually and are committed to assisting them in reaching a settlement which is mutually acceptable. The individuals are informed that the mediators do not and will not provide legal advice or legal services. They are informed and encouraged to seek independent legal counsel and to retain an attorney at the onset of mediation. When an agreement is reached, the terms of the settlement are to be submitted to the attorneys to be legally drafted and executed.

Divorce mediation as described herein constitutes the practice of law. The divorce process has always been of special concern to the state and, as such, an integral part of the administration of justice which is a function of the courts.

Accordingly, it is a violation of Disciplinary Rule 3-103 for a non-practicing lawyer to engage with a non-lawyer in the business of offering divorce mediation services to the public.

This 25th day of January, 1983.

ETHICS COMMITTEE:

Jack C. Raulston

F. Evans Harvill

Dissenting: G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD