After mediating a divorce between two unrepresented spouses, can the lawyer-mediator prepare the court pleadings that carry out their agreement?

Plain-English summary

A lawyer mediates a dissolution between two unrepresented spouses, who reach a full resolution. The committee addressed whether the lawyer-mediator may then prepare, on behalf of both spouses, the pleadings that reflect their agreement.

The committee started with RPC 2.4, which requires a lawyer serving as a third-party neutral to tell unrepresented parties that the lawyer is not representing them and to explain the difference between the neutral role and representing a client. A mediator who records the parties' agreement in writing is not representing either party; the committee said that is recording terms, not advocacy, and the best practice (though not required by RPC 2.4) is to advise the parties they may want the agreement reviewed by counsel. Drafting pleadings is different: under GR 24(a)(2) it constitutes the practice of law. But the committee, relying on In re Estate of Knowles, held that merely filling in blanks on a pre-printed form as the parties direct is not the practice of law, so a mediator may complete a pleading form for both parties where the mediator's role is just recording what the parties dictate, and may file documents because filing is not the practice of law.

The line the committee drew is between filling in a form and drafting customized provisions. If the lawyer-mediator drafted pleadings with customized provisions for both parties, the mediator would be representing both parties in the same litigation. RPC 1.7(b)(3) flatly prohibits representing opposing parties in the same litigation, regardless of consent, and the committee held the parties remain adverse in the legal proceeding until it is dismissed, even after they agree on terms. The committee also addressed RPC 1.12(a), which by its terms would let a former mediator represent parties to the mediation with all parties' written informed consent; but the committee held RPC 1.7(b)(3) takes precedence, so a common representation of former mediation parties who remain opposing parties in a pending proceeding is precluded. The committee noted the prohibition may not apply where a dispute is resolved without a court proceeding or where the proceeding is voluntarily dismissed before the mediator changes roles, and it did not address mediations with no pending litigation.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee held that a lawyer-mediator may memorialize the parties' agreement and may complete pleading-form blanks as the parties direct without representing either side, but may not draft customized pleadings for both unrepresented parties in a pending dissolution. The opinion treats GR 24(a)(2) drafting of pleadings as the practice of law and treats customized drafting for both sides as representation of opposing parties barred by RPC 1.7(b)(3) regardless of consent, with RPC 1.7(b)(3) taking precedence over RPC 1.12(a). It flags that the bar may not apply where there is no court proceeding or where the case is dismissed before the mediator switches roles.

Common questions

Q: Can a lawyer-mediator write down the deal the parties reached?

A: Yes. The committee held that drafting a written confirmation of the parties' agreement is recording terms, not representing either party, as long as the mediator makes clear it is not acting as either party's lawyer.

Q: Can the mediator fill out the divorce pleading forms for both spouses?

A: Qualified. The committee held that filling in blanks on a pre-printed form as the parties direct is not the practice of law, relying on In re Estate of Knowles, so a mediator may complete a form for both parties in that limited role, and may file the documents.

Q: Can the mediator draft customized pleadings for both spouses?

A: No. The committee held that drafting customized provisions for both parties would be representing opposing parties in the same litigation, which RPC 1.7(b)(3) prohibits even with the parties' consent, because they remain adverse until the proceeding is dismissed.

Q: Does RPC 1.12 let the mediator represent the parties afterward if everyone consents?

A: Not where they remain opposing parties in a pending case. The committee held that although RPC 1.12(a) allows representation with all parties' written informed consent, RPC 1.7(b)(3) takes precedence and bars a common representation of former mediation parties still in a legal proceeding against one another.

Background and rules framework

The opinion interprets Washington RPC 2.4 (Model Rule 2.4, lawyer serving as a third-party neutral, including the 2.4(b) duty to inform unrepresented parties), RPC 1.7(b)(3) (Model Rule 1.7(b)(3), the non-consentable bar on representing opposing parties in the same litigation), and RPC 1.12(a) (Model Rule 1.12, former judge, arbitrator, mediator, or other neutral). It applies GR 24(a)(2)'s definition of the practice of law and the line drawn in In re Estate of Knowles between completing a form and giving legal advice.

Citations and references

Rules of Professional Conduct:

• Model Rule 2.4 / Washington RPC 2.4(b) (lawyer as third-party neutral; informing unrepresented parties)
• Model Rule 1.7 / Washington RPC 1.7(b)(3) (no representation of opposing parties in the same litigation)
• Model Rule 1.12 / Washington RPC 1.12(a) (former mediator or other neutral)

Statutes and rules:

• Washington GR 24(a)(2) (definition of the practice of law)

Cases:

• In re Estate of Knowles, 135 Wn. App. 351 (2006), filling in form blanks is not the practice of law
• In re Disciplinary Proceeding Against Shepard, 169 Wn.2d 697, 239 P.3d 1066 (2010), distinguishing Knowles

See also

• WA Ethics Op. 202002: ghostwriting for pro se parties in state court
• ABA Formal Op. 06-439: truthfulness in negotiation and mediation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1691

Original opinion text

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

Advisory Opinion: 201901
Year Issued: 2019
RPC(s): RPC 1.7, 1.7(b)(3), 1.12(a), 2.4, 2.4(b), GR 24(a)(2)
Subject: Lawyer-Mediator Preparing Pleadings for Unrepresented Parties in Dissolution

Issue presented: A lawyer serves as a mediator in resolving issues in a dissolution action. The parties to the dissolution action are both unrepresented. If the parties come to a full resolution of all issues through the mediation, may the lawyer-mediator on behalf of both spouses prepare pleadings that reflect the parties’ agreement?

Discussion:

RPC 2.4 addresses the obligations of a lawyer who is serving in a neutral role, including as a mediator. That rule requires a third-party neutral, such as a mediator, to “inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.” RPC 2.4(b).

RPC 2.4 recognizes that a lawyer serving as a mediator is performing a very different function from a lawyer who is representing a client. A lawyer representing a client advises that client of what is in the client’s best interest and drafts documents with the goal of furthering the client’s interests. In contrast, a lawyer acting as a mediator is not advocating for either party to the mediation but instead attempts to bring the parties to an agreement.

If the parties come to an agreement at a mediation, it is appropriate for the mediator to draft a written confirmation of that agreement with as much or as little specificity as appears warranted under the circumstances. Drafting the confirmation of the parties’ agreement does not mean the mediator is representing one or both parties to the mediation as the mediator is simply recording the terms of the parties’ agreement. When doing so, the lawyer-mediator should be sure each party understands that the mediator is not acting as either party’s lawyer. While not required by RPC 2.4, the best practice is to advise both parties that they may wish to have the agreement reviewed by counsel.

Drafting pleadings is not the same as recording the parties’ oral agreement in written form. Rather, under GR 24(a)(2), drafting pleadings constitutes the practice of law.

However, filling in the blanks on a pleading form does not necessarily constitute the practice of law. For example, in In re Estate of Knowles, 135 Wn.App. 351, 364-365 (2006), the Court of Appeals found that a testator’s son did not engage in the practice of law by filling in blanks in a pre-printed will form when the son merely filled in the form as the testator instructed. The Court found that “[g]enerally, a person begins to practice law by either directly or indirectly (selection of appropriate documents) giving advice” and completing forms did not qualify as the practice of law because the son did not select the will form or advise the testator. Id., 135 Wn.App. at 365. See also In re Disciplinary Proceeding Against Shepard, 169 Wn.2d 697, 710-11, 239 P.3d 1066 (2010) (distinguishing Knowles from nonlawyer selling living trust documents who presented clients with information about the benefits of a living trust and selected which documents the clients should use).

A mediator may complete a pleading form on behalf of both parties to the mediation if the mediator’s role in doing so is similar to the son’s role in Estate of Knowles, where the son was merely recording information on a preprinted form as his father directed. Because filing documents with the court does not constitute the practice of law, a mediator is permitted to file documents regardless of the contents. n.1

On the other hand, if a lawyer-mediator drafted a pleading with customized provisions on behalf of both parties, the mediator would be representing both parties in the same litigation. The conflict of interest rules flatly prohibit a lawyer from representing adverse parties in the same action if the representation involves the assertion of a claim by one client against another client. Rule 1.7(b)(3). Even if the parties have agreed in the mediation to a resolution of the claims, the parties are still adverse in a legal proceeding until the legal proceeding has been dismissed.

If the parties to a dissolution have reached agreement on the matters that were originally in controversy, some may argue that they are no longer asserting claims against one another so a lawyer could represent both in drafting pleadings dictated by the parties’ agreement. But this argument is incompatible with the plain language of Rule 1.7(b)(3) and the first sentence of comment 21: “Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent.” Cmt [21] to Rule 1.7. See also cmts [23]-[25] to Rule 1.7. n.2

RPC 1.12(a) is also relevant to how a lawyer-mediator may proceed after a mediation is completed. It provides, except for an exception not relevant here, that:

a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

By its terms, the rule would permit a former mediator to represent one party to the former mediation provided only that all the other parties were willing and able to give their informed consent. Given that such an arrangement would authorize the lawyer to act and advocate solely on behalf of that party, however, mediation parties excluded from the representation may not be willing to consent to this arrangement. Furthermore, a mediator may not wish to ask for such consent because of a concern that doing so would be inconsistent with the mediator’s prior neutrality.

Significantly, RPC 1.12(a) does not, itself, preclude a former mediator from representing all the parties to the mediation if all the parties provide informed consent confirmed in writing. Such a common representation, however, would be in conflict with the prohibition contained in RPC 1.7(b)(3), discussed above, insofar as the parties continue to be opposing parties in the same litigation. The Committee is of the opinion that the prohibition in RPC 1.7(b)(3) must take precedence over a reading of RPC 1.12 that would permit such a common representation. Thus, unless and until the rules are amended to permit such a common representation of former parties to a mediation who remain in a legal proceeding nominally against one another, such a common representation is precluded despite the fact that the former mediator believes the parties have resolved their differences.

In some circumstances, the prohibition of RPC 1.7(b)(3) may not apply. n.3 Some disputes may be resolved by mediation without recourse to a court proceeding. In other cases, a legal proceeding may be voluntarily dismissed by the parties before the former mediator changes from the role of mediator to that of lawyer representing all the parties to the former mediation. This opinion does not address mediations in which there is no litigation pending.

Footnotes

1. This does not mean a mediator can present the orders to a judge or commissioner, as that would require a notice of appearance on behalf of at least one party.

2. Comments [23] –[25] provide as follows: [23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.

[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.

[25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

3. Comment [17] to RPC 1.7, for example, states that RPC 1.7(b)(3) “does not preclude a lawyer's multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a ‘tribunal’ under Rule 1.0A(m)),” but “such representation may be precluded by” RPC 1.7(b)(1). This comment addresses a lawyer who is representing more than one client at a mediation. It does not address a lawyer who is serving as a mediator.