Can a practicing lawyer who also serves as a mediator or arbitrator list both roles on letterhead, an office sign, or a business card?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The Board was asked whether a licensed attorney engaged in the regular practice of law who also serves as a mediator may indicate both activities together on letterhead, an office sign, a professional card, or a publication without violating DR 2-102(E), which bars a lawyer engaged in the practice of law and another profession or business from indicating that on letterhead, an office sign, or a professional card, or from identifying as a lawyer in connection with the other profession or business.
The opinion relied on Ethical Consideration 5-20, which recognizes that a lawyer may serve as an impartial arbitrator or mediator (after disclosing present or former relationships) and should not thereafter represent any party in the dispute. Reading EC 5-20 to confirm that ADR-neutral service is an appropriate role for a licensed attorney, the opinion concluded that because acting as an impartial arbitrator, mediator, or neutral in an ADR proceeding is not engaging in "another profession or business," a lawyer engaged in both may so indicate on letterhead, an office sign, a professional card, or a publication, and may identify as a lawyer in connection with the neutral activities.
The opinion qualified that conclusion: an attorney acting as an arbitrator or mediator is not, in that instance, "representing a client" in the traditional attorney's role, may not perform any other legal services attending the dispute being mediated or arbitrated, and remains governed by the Code of Professional Responsibility. It noted that the Tennessee Supreme Court had recently adopted a rule contemplating recognition and certification of legal specialists, and left for further clarification whether mediation or arbitration would be treated as a certifiable legal specialty.
Currency note
This opinion was issued in 1993, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including DR 2-102(E) and EC 5-20) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The modern framework includes RPC 2.4 (lawyer serving as a third-party neutral) and the advertising and firm-name rules at RPC 7.1 and 7.5. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.
Common questions
Q: Could a Tennessee lawyer advertise that he was also a mediator or arbitrator on the firm letterhead?
A: Per the opinion, yes. It concluded that ADR-neutral service is not "another profession or business" under DR 2-102(E), so a lawyer could indicate both the law practice and the neutral role on letterhead, signs, cards, and publications.
Q: Could the lawyer-mediator also do legal work on the same dispute?
A: No. The opinion concluded that a lawyer acting as arbitrator or mediator is not representing a client in the traditional sense and may not perform other legal services attending the dispute being mediated or arbitrated.
Q: Did the opinion treat mediation as a certified legal specialty?
A: No. It noted that the Supreme Court had adopted a rule contemplating certification of legal specialists and left for further clarification whether mediation or arbitration would be certified and regulated as a legal specialty.
Background and rules framework
The opinion interpreted former DR 2-102(E) (no indicating a second profession or business on letterhead, signage, or cards) and EC 5-20 (a lawyer may serve as an impartial arbitrator or mediator after disclosure and may not thereafter represent a party). The modern analogs are Model Rule 2.4 / Tennessee RPC 2.4 (lawyer serving as a third-party neutral) and the firm-name and communication rules at Model Rule 7.5 and 7.1 / Tennessee RPC 7.5 and 7.1.
Citations and references
Rules of Professional Conduct (former Code):
- DR 2-102(E) (indicating another profession or business). Modern analog: Model Rule 7.5 and 7.1 / Tennessee RPC 7.5, 7.1
- EC 5-20 (lawyer as impartial arbitrator or mediator). Modern analog: Model Rule 2.4 / Tennessee RPC 2.4
See also
- Tenn. Ethics Op. 98-F-142: Mediator Designation on Letterhead
- Tenn. Ethics Op. 98-F-142(a): Mediator on Letterhead (Amended)
- ABA Formal Op. 518: Duties of a Lawyer-Mediator
Source
- Landing page: https://www.tbpr.org/ethic_opinions/93-f-131
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
93-F-131 - Lawyer Mediator on Signage
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 93-F-131
Inquiry is made concerning whether a licensed attorney who is engaged in the regular practice of law and also serves as a mediator may indicate both activities together on letterhead, office sign, professional card, or publication without violating DR 2-102(E).
DR 2-102(E) provides:
A lawyer who is engaged in the practice of law and another profession or business shall not so indicate on his letterhead, office sign or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.
Ethical Consideration 5-20 of the Code of Professional Responsibility provides:
A lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationships. After a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved.
Ethical Consideration 5-20 clearly indicates that services as a dispute resolution neutral is an appropriate role for a licensed attorney.
Since acting as an impartial arbitrator, mediator, or neutral in an alternate dispute resolution proceeding is not engaging in "another profession or business:, it follows that a lawyer who is engaged both in the practice of law and as an impartial arbitrator, mediator, or neutral in an ADR proceeding may so indicate on his letterhead, office sign, professional card of publication and may identify himself as a lawyer in connection with his activities as an arbitrator, mediator or dispute resolution neutral.
It is clear, however, that the arbitrator or mediator who is an attorney licensed in Tennessee or elsewhere is not in that instance "representing a client" in the traditional attorney's role. He/she may not perform any other legal services attending the dispute being mediated or arbitrated. A licensed attorney, acting as an arbitrator or mediator, is governed by the Code of Professional Responsibility.
The Tennessee Supreme Court has recently adopted a rule which contemplates the recognition, certification and qualification of legal specialists. Whether performing mediation or arbitration services is to be considered a legal specialty and certified and regulated as such shall await further clarification.
This 10th day of September , 1993.
ETHICS COMMITTEE:
Thomas H. Rainey
Herman Morris, Jr.
Walker T. Tipton
APPROVED AND ADOPTED BY THE BOARD
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