Can a Texas lawyer agree to mediate a divorce between two unrepresented spouses and also draft the divorce decree and documents if they settle?

Plain-English summary

The opinion addresses a lawyer hired by both spouses to mediate a divorce settlement and, if they reach agreement, to prepare all documents to effect an agreed divorce (decree, conveyances, releases, child support, visitation). The spouses have no separate counsel, the lawyer-mediator tells them he represents neither, and they split the fee equally.

The Committee explains that, under the Texas rules, mediation is not the practice of law but action as an "adjudicatory official," because the Terminology section defines a mediator as serving on a "tribunal." As an adjudicatory official, the lawyer-mediator is subject to Rule 1.11. Because the arrangement to mediate and then prepare documents is agreed before the mediation begins, it violates Rule 1.11(b), which bars an adjudicatory official from negotiating for employment with a party in a pending matter in which the official is participating personally and substantially. (Rule 1.11(a) does not apply, since the services are agreed at the outset.)

Separately, while mediating a divorce is not practicing law, preparing the documents is legal service. A divorce, however amicable, is a litigation proceeding under Texas law, so drafting documents for both unrepresented spouses would be representing both parties in litigation. The Committee concludes a lawyer cannot serve as an "intermediary" under Rule 1.07 here, because Rule 1.07 covers only "potentially conflicting interests" and divorcing parties are opposing parties to litigation; representation is instead governed by Rule 1.06(a), which flatly bars representing opposing parties to the same litigation. So even setting mediation aside, the lawyer could never represent both spouses to prepare the divorce documents.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a lawyer cannot package mediation of a divorce together with drafting the divorce documents for both spouses. The Committee grounds the bar in two independent places: Rule 1.11(b) (an adjudicatory official cannot negotiate up front for employment in the same matter) and Rule 1.06(a) (no representing opposing parties to the same litigation, which a divorce is). If a lawyer-mediator instead acts purely as a lawyer, the Committee says the lawyer may represent only one spouse in preparing the documents.

Common questions

Q: Can I mediate a couple's divorce and then draft their agreed decree and documents?

A: No. Per Opinion 583, agreeing to do both before the mediation violates Rule 1.11(b), and drafting the documents for both spouses violates Rule 1.06(a) because a divorce is litigation.

Q: Isn't mediation different from practicing law?

A: Yes. The Committee says mediation is action as an "adjudicatory official," not the practice of law, but preparing the divorce documents is legal service, which triggers the conflict rules.

Q: Can I at least represent one spouse to prepare the documents?

A: Yes. The Committee says a lawyer acting solely as a lawyer may represent only one of the two parties in preparing documents to implement an agreed divorce.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.11 (adjudicatory officials, including the Rule 1.11(b) bar on negotiating for employment), corresponding to ABA Model Rule 1.12 and the third-party-neutral role in Model Rule 2.4; Rule 1.07 (lawyer as intermediary, held inapplicable); and Rule 1.06(a) (no representing opposing parties to the same litigation), corresponding to ABA Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former judge, arbitrator, mediator, or other third-party neutral)
• MR 1.7 (conflict of interest: current clients)
• MR 2.4 (lawyer serving as a third-party neutral)
• Texas Disciplinary Rule 1.11(b), 1.11(a)
• Texas Disciplinary Rule 1.07(d) (intermediary)
• Texas Disciplinary Rule 1.06(a)

See also

• TX Ethics Op. 584: A Former Client's Conduct Becoming Material to a Current Matter
• TX Ethics Op. 598: Lateral Hire, Imputed Former-Client Conflict, and Screening

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-583/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_583.pdf

Original opinion text

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

QUESTION PRESENTED

May a lawyer enter into an arrangement to mediate a divorce settlement between parties who are not represented by legal counsel and prepare the divorce decree and other necessary documents to effectuate an agreed divorce if the mediation results in an agreement?

STATEMENT OF FACTS

A lawyer is hired by the parties in a divorce case to mediate a settlement and prepare all of the documents necessary to effect an agreed divorce if an agreement results from the mediation. Under the proposed arrangement, the lawyer will conduct the mediation and, if an agreement is reached, prepare the decree of divorce and other documents, which may include conveyances of real property, various releases, child support provisions and visitation schedules. The parties to the divorce are not represented at any time by their own separate legal counsel. The lawyer/mediator advises both parties that the lawyer/mediator does not represent either party during the mediation or in the preparation of the documents to implement the agreed terms of the divorce. The parties agree that the fee of the lawyer/mediator will be paid one-half by each.

DISCUSSION

Under the Texas Disciplinary Rules of Professional Conduct, mediation does not constitute the practice of law but instead constitutes action as an “adjudicatory official.” The Terminology section of the Texas Disciplinary Rules of Professional Conduct defines “Adjudicatory Official” to mean a person who serves on a “Tribunal” and defines “Tribunal” to include a mediator engaged in resolving or recommending resolution of a particular dispute or controversy.

As an “adjudicatory official” under the Texas Disciplinary Rules of Professional Conduct, a lawyer acting as a mediator is subject to the requirements of Rule 1.11. Since the proposed arrangement for mediation followed by document preparation is to be agreed on by the parties before the mediation begins, the proposed arrangement would be in violation of Rule 1.11(b), which provides in pertinent part that “[a] lawyer who is an adjudicatory official shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a pending matter in which that official is participating personally and substantially.” Thus under Rule 1.11(b) a lawyer/mediator may not enter into an agreement with the parties to a divorce to provide both mediation and legal services with respect to the divorce. (Rule 1.11(a), which applies to representation in a matter as to which a lawyer has previously acted as an adjudicatory official, would not be applicable to the circumstances here considered since here the mediation and document preparation services are agreed to when the mediation begins.)

Although acting as a mediator with respect to a divorce does not constitute the practice of law, the preparation of documents to implement an agreement for divorce reached in a mediation clearly involves the provision of legal services by the lawyer/mediator. If a lawyer who is also a mediator chooses to act solely as a lawyer with respect to a particular divorce, the lawyer may represent only one of the two parties in preparing documents to implement an agreement for divorce. A divorce, no matter how amicable or uncontested, is a litigation proceeding under Texas law. In the circumstances here considered, the preparation of documents for both otherwise unrepresented parties in a divorce to effect an agreed settlement would constitute representation of both parties in the divorce litigation. Because a divorce in Texas necessarily involves litigation, a lawyer in the case of a divorce could not provide legal services to both parties as an “intermediary” under Rule 1.07. Rule 1.07(d) provides that, for purposes of Rule 1.07, “a lawyer acts as intermediary if the lawyer represents two or more parties with potentially conflicting interests.” Since under Texas law a divorce is a litigation matter, the parties in a divorce do not have merely “potentially conflicting interests” and consequently a lawyer could never be an intermediary for the parties with respect to a divorce. Instead, representation of parties in a divorce is governed by Rule 1.06(a), which provides without qualification that “[A] lawyer shall not represent opposing parties to the same litigation.” Hence, even if a lawyer/mediator did not propose to provide mediation in the case of a particular divorce, the lawyer/mediator could not in any circumstances act as a lawyer representing both parties to prepare documents to effectuate an agreed divorce.

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may not agree to serve both as a mediator between parties in a divorce and as a lawyer to prepare the divorce decree and other necessary documents to effect an agreement resulting from the mediation. Because a divorce is a litigation proceeding, a lawyer is not permitted to represent both parties in preparing documents to effect the terms of an agreed divorce.

Tex. Comm. On Professional Ethics, Op. 583 (2008)