Can a lawyer on a mediation team keep acting as the parties' intermediary after the mediation, when the team operates through a nonlawyer mediation service?
Apply this to your situation
This page answers the general question as of 1988. 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 inquiry sought further clarification about lawyers who act as members of mediation teams through a mediation service. The specific question was whether, once a mediation had been successfully completed, the mediation team could continue to act as intermediary at the parties' request.
The committee was of the opinion that a lawyer acting as intermediary is practicing law. Because RPC 5.4(a) prohibits a lawyer from sharing fees with nonlawyers, the committee concluded that while the lawyer could privately act as an intermediary, the lawyer could not do so as part of the mediation team operating through the mediation service.
The line the committee drew was between the lawyer's private practice (permitted) and the same intermediary work done within a team whose structure would involve fee-sharing with nonlawyers (not permitted).
Currency note
This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The fee-sharing rule then numbered RPC 5.4(a) corresponds to Model Rule 5.4(a) and was carried forward, with revised wording, in the current rules; the former Model Rule on a lawyer acting as intermediary has since been withdrawn. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.
Common questions
Q: Is acting as an intermediary for the parties the practice of law?
A: Per the opinion, yes. The committee was of the opinion that a lawyer acting as intermediary is practicing law.
Q: Why couldn't the lawyer keep doing the intermediary work through the mediation team?
A: Because RPC 5.4(a) prohibits a lawyer from sharing fees with nonlawyers, and doing the work as part of the mediation team operating through the nonlawyer service would involve that prohibited fee-sharing.
Q: Could the lawyer act as intermediary at all?
A: Yes, privately. The committee said the lawyer could act as an intermediary on his own, just not as part of the mediation team operating through the mediation service.
Background and rules framework
The opinion applies the rule then numbered Washington RPC 5.4(a), corresponding to Model Rule 5.4(a), which prohibits a lawyer from sharing legal fees with a nonlawyer. The committee treated the post-mediation intermediary role as the practice of law, so performing it within a team structured through a nonlawyer mediation service would amount to prohibited fee-sharing; performed privately by the lawyer, it would not.
Citations and references
Rules of Professional Conduct:
- Washington RPC 5.4(a) (a lawyer shall not share legal fees with a nonlawyer), corresponding to Model Rule 5.4(a).
See also
- WSBA Ethics Op. 1119: a lawyer-nonlawyer partnership to run a child-custody evaluation business
- WSBA Ethics Op. 896: running an independent law firm out of a consulting firm's offices
- ABA Formal Op. 464: dividing a fee with a firm that shares fees with nonlawyers
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=212
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1132
Year Issued: 1988
RPC(s): RPC 5.4(a)
Subject: Lawyer as mediator; intermediary; division of fees with nonlawyer
The Committee considered your inquiry regarding further clarification of the conduct of lawyers who act as members of mediation teams through [a mediation service.] Your specific inquiry was whether once the mediation had been successfully completed, and at the request of the parties, the mediation team could continue to act as intermediary. The Committee was of the opinion that a lawyer acting as intermediary is practicing law, and that RPC 5.4(a) prohibits a lawyer from sharing fees with nonlawyers, and therefore while the lawyer could privately act as an intermediary, the lawyer could not do so as a part of a mediation team as [the mediation service].
Get today's answer for your situation
You just read a 1988 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.