Tuesday, June 5, 2012

May Resigned Attorney Serve As Mediator?

A decision from the Massachusetts Supreme Judicial Court:

We address whether an attorney (petitioner) whose resignation from the practice of law was accepted as a disciplinary sanction may now work, either for pay or on a volunteer basis, as a mediator. We conclude that, although mediation does not in all circumstances constitute the practice of law, an attorney who has resigned from the practice of law while the subject of disciplinary investigation under S.J.C. Rule 4:01, § 15, as appearing in 425 Mass. 1319 (1997), or who has been disbarred or suspended from the practice of law under S.J.C. Rule 4:01, § 8, as appearing in 453 Mass. 1310 (2009), may be prohibited from serving as a mediator when to do so would be perceived by the public as an extension of the attorney's practice of law, or when the conduct of the mediation is so closely related to the practice of law as to constitute legal work within the meaning of S.J.C. Rule 4:01, § 17(7), as amended, 453 Mass. 1307 (2009). We remand to the county court for a determination whether it is appropriate, in light of our opinion, that the petitioner engage in mediation, and, if so, to impose any conditions necessary to protect his mediation clients and to ensure the integrity of the legal profession.

The court:

 It may be inferred from the record that, prior to his resignation, the petitioner had not engaged in mediation, and that he does not propose to provide mediation services to attorneys with whom he previously was engaged in the practice of law or to conduct mediation in the same offices from which he previously conducted his law practice. We therefore focus our discussion on whether mediation as performed by the petitioner will invoke his professional judgment in applying legal principles to address the individual needs of mediation clients.

The record does not permit a definitive conclusion regarding the extent to which mediation is performed by lawyers in the Commonwealth. Based on a review of literature discussing lawyer mediation, and from the prevalence of rules and standards directed to the practice of mediation by lawyers, however, it appears that many lawyers do offer mediation services. As also appears from these sources, the extent to which a lawyer mediator draws on his or her legal training and experience may depend on the approach or technique employed. Thus, although court-connected mediation in the Commonwealth seems to fall within the scope of "facilitative" mediation (which does not call on the mediator's exercise of professional judgment as a lawyer), a lawyer may also engage in "evaluative" mediation, in which a neutral evaluates the merits of the case and may offer an opinion about its worth. See generally Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negotiation L.Rev. 7, 26-34 (1996).

In the context of bar discipline cases, therefore, mediation may constitute legal work such that, following disciplinary resignation, suspension, or disbarment, an individual may engage in it only in certain circumstances and under specified conditions. Although we do not preclude the possibility that the petitioner's proposed service may be appropriate, we are unable, on the record before us, to determine whether the petitioner should be permitted to serve as a mediator prior to any future reinstatement as a member of the bar of the Commonwealth.

The case is In the Matter of Bott, decided today. (Mike Frisch)

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