Can a lawyer who is an approved Tennessee Rule 31 mediator advertise that status on the firm letterhead, and in what words?

Plain-English summary

The opinion answered whether an approved Rule 31 mediator could list himself as "Approved Rule 31 Mediator" or "Tennessee Supreme Court Approved Mediator" on attorney letterhead. It applied DR 2-101(A), which prohibits public communications containing false, fraudulent, misleading, or deceptive statements, and DR 2-101(C), which requires certification and specialization disclosures. It relied on Opinion 93-F-131 (a lawyer who is also an impartial arbitrator, mediator, or neutral may indicate that on letterhead and identify as a lawyer in connection with those activities) and Opinion 135 (lawyers historically operate law-related ventures, including mediation services).

The opinion concluded that, because the inquiring attorney is an approved Rule 31 mediator, it is not false, fraudulent, misleading, or deceptive to include that fact on letterhead. On the specific wording, it concluded that "Approved Rule 31 Mediator" may be misleading because it does not specifically indicate what body or agency approved the mediator, while "Tennessee Supreme Court Approved Mediator" is not misleading and may be used, because the Tennessee Supreme Court has promulgated standards to qualify individuals as a Rule 31 dispute resolution neutral.

The Board revisited the approved wording in Opinion 98-F-142(a) (December 1998), which reached the same analysis but concluded that "Rule 31 Listed Mediator" is the non-misleading phrase that may be used.

Currency note

This opinion was issued in 1998, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including DR 2-101) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The Board also amended the approved wording in Opinion 98-F-142(a). Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific phrasing mentioned here.

Common questions

Q: Could a lawyer-mediator note the Rule 31 status on letterhead at all?

A: Per the opinion, yes. Because the lawyer is an approved Rule 31 mediator, the opinion concluded it is not false or misleading to state that fact on letterhead, consistent with Opinion 93-F-131.

Q: What wording did this opinion approve?

A: The opinion concluded "Approved Rule 31 Mediator" may be misleading (it does not identify the approving body), while "Tennessee Supreme Court Approved Mediator" is not misleading. The later Opinion 98-F-142(a) instead approved "Rule 31 Listed Mediator."

Background and rules framework

The opinion interpreted the former Code's DR 2-101(A) (no false, fraudulent, misleading, or deceptive communications) and DR 2-101(C) (certification and specialization disclosures). The modern analogs are RPC 7.1 (Model Rule 7.1) on communications concerning a lawyer's services and RPC 7.4 (Model Rule 7.4) on communicating certification. It relied on Opinions 93-F-131 and 135 and was amended by Opinion 98-F-142(a).

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-101(A) (no false or misleading communications); DR 2-101(C) (certification/specialization disclosures). Modern analogs: Model Rule 7.1 / Tennessee RPC 7.1; Model Rule 7.4 / Tennessee RPC 7.4

Other opinions cited:

• Tennessee Formal Ethics Opinions 93-F-131 and 135; amended by Opinion 98-F-142(a)

See also

• Tennessee Op. 98-F-142(a): Mediator Designation on Letterhead (Amended Wording)
• ABA Formal Op. 518: Lawyer-Mediator and Misleading Communications
• Alabama Op. 1994-12: Factual Statements on Letterhead and Business Cards

Source

• Landing page: https://www.tbpr.org/ethic_opinions/98-f-142

Original opinion text

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

98-F-142 - Mediator on Attorney's Letterhead

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Formal Ethics Opinion 98-F-142

Inquiry is made as to whether an approved rule 31 mediator may list himself as “Approved Rule 31 Mediator” or “Tennessee Supreme Court Approved Mediator” on the attorney’s letterhead.

DR 2-101(A) prohibits lawyers from using or participating in using any form of public communication containing false, fraudulent, misleading, or deceptive statements or claims.

DR 2-101(C) requires disclosures of certification and specialization with respect to each lawyer of law advertised.

Formal Ethics Opinion 93-F-131 states, “a lawyer who is engaged both in the practice of law and is an impartial arbitrator, mediator or neutral in an ADR proceeding may so indicate on his letterhead, office sign, professional card, or publication and may identify himself as a lawyer in connection with his activities as an arbitrator, mediator, or dispute resolution neutral. ...Whether performing mediation or arbitration services is to be considered a legal speciality and certified and regulated as such shall wait further clarification.”

Formal Ethics Opinion 135 states, “Lawyers have historically engaged in lawrelated activities by operating non-lawyer entities. Some of the law-related ventures or ancillary businesses operated, and law-related services provided, by lawyers are ... arbitration/mediation services...”

Since the attorney in this instance is an approved Rule 31 mediator, it is not false, fraudulent, misleading or deceptive to include that statement on the attorney’s letterhead. To specifically address whether the attorney may use “Approved Rule 31 Mediator” or “Tennessee Supreme Court Approved Mediator,” this opinion concludes that “Approved Rule 31 Mediator” may be misleading since it does not specifically indicate what body or agency approved the mediator. “Tennessee Supreme Court Approved Mediator” is not misleading and therefore may be used by the inquiring attorney since the Tennessee Supreme Court has promulgated standards to qualify individuals as a Rule 31 dispute resolution neutral.

This 8th day of July, 1998.

ETHICS COMMITTEE:

Larry D. Wilks, Chair

Michelle A. Benjamin

Jack W. Robinson, Sr.

ADOPTED AND APPROVED BY THE BOARD