Mediation / Unauthorized Practice of Law

Mediation – Preparation of Documents.  An opinion from a Texas ethics committee found that a lawyer acting as a mediator who also prepared the ancillary documents for both parties was in violation of that states rules of professional conduct.  The opinion noted that while acting as a mediator did not constitute the practice of law, preparing the documents that effect the divorce did constitute the practice of law.   This, according to the opinion, was akin to representing opposing parties and, therefore, an ethical breach.  In Massachusetts, where it is common practice for lawyer-mediators to draft agreements and related documents, and where such drafting clearly constitutes the practice of law, see Matter of Kafkas, 451 Mass. 1001 (2008), there are, nevertheless, presently no such ethical constraints.  An ethics opinion from the Massachusetts Bar Association squarely addressed the issue in 1985, stating that “an attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement and must obtain the informed consent of the parties to such joint representation.” MBA Ethics Opinion 85-3 (1985).  Texas State Bar Professional Ethics Comm. Op. 583 9/08  
 
Mediation as the Unauthorized Practice of Law?  Non-attorney mediators beware!  In the coming months, the Supreme Judicial Court will be deciding a case of utmost importance to you and the entire mediation community.  The case involves an attorney, Anthony Bott, who resigned the practice of law as a disciplinary sanction and sought permission from the Single Justice to work as a mediator.  The Board of Bar Overseers filed an opposition to the attorney’s request.  The Single Justice, without deciding the issue, sent the issue to the SJC.   While the SJC could narrowly tailor the issue to the scope of Bott’s discipline, the Court could conceivably find that mediation is the practice of law.   In re: Anthony Raoul Bott, No. SJC 10935
 
The Bott Case: Mediation, Public Perception, and the Unauthorized Practice of Law.
 
This quarter, rather than a case review, I want to focus on the recent Supreme Judicial Court opinion, Matter of Bott, 462 Mass. 430 (2012) which has attracted wide attention in the local mediation community.  Because of its potential ramifications, many of us have been anticipating this case with great interest and even a certain anxiety.  The good news: while the Court could have used this case to find that mediation is the practice of law, it did not do so.  Of course, such a decision would have been a serious blow to non-lawyer mediators, many of whom are members of MCFM.  But what did the Court hold?  And what can we learn from the case?
 
The facts are simple.  Mr. Bott, an attorney, agreed to resign from the practice of law in the context of a legal disciplinary proceeding and the Board of Bar Overseers accepted his resignation as a disciplinary sanction.  Following his resignation, Mr. Bott filed a petition to the Single Justice requesting permission to serve as a mediator. The Single Justice sent it to the SJC for its decision.
 
The narrow issue before the SJC was whether Mr. Bott, an attorney whose resignation was accepted as a disciplinary sanction, was permitted to perform services as a mediator.  The Court held, essentially, that Mr. Bott may be barred from acting as a mediator “when to do so would be perceived by the public as an extension of the attorney’s practice of law.”  To the SJC, public perception (how the public views the work sought to be performed by the sanctioned lawyer) is critical.
 
Thus, the Court went on: “it is relevant whether a disbarred or suspended lawyer draws on his or her legal education and experience and exercises judgment in applying legal principles to address the individual needs of the client.”  Further, whether a sanctioned attorney engaged in the practice of law depends on whether the person’s post-sanction work was performed by the lawyer prior to the sanction, whether the work is customarily performed by lawyers, and whether the lawyer seeks to perform work in the same community or for other lawyers.
 
Bott’s focus is narrow.  It doesn’t mean that a non-attorney mediator is engaged in the unauthorized practice of law.  It’s about whether a sanctioned attorney can engage in mediation; when that attorney performs certain professional activities, there is a heightened risk that the public may perceive such activity as the practice of law.
 
In fact, Bott points out that some services performed by non-lawyers become legal activity when performed by a sanctioned lawyer.  For example, in one case, a sanctioned attorney was barred from working as a title abstractor even though title abstractors are not necessarily lawyers.  In another example, the disciplinary rules themselves explicitly provide that sanctioned attorneys cannot work as paralegals – although paralegals are clearly not engaged in the practice of law.
 
What does the decision teach to mediators generally?    The public’s perception about whether an individual is practicing law is at the heart of the matter – and the perception applies, without distinction, to attorneys and non-attorneys.  This triggers for me questions that mediators have been wrestling with for a long time.  If a mediator has the clients sign an agreement that explicitly sets forth that he/she is not acting as their attorney, is that a sufficient defense to a “practicing law” claim?  It still matters what the mediator does after they sign, it seems.  For example, the mediator couldn’t go represent one of them in court on the same matter.  But what about drafting financial statements or preparing separation agreements?  Might that alter the client’s perception about what role the mediator is actually performing?  And what if, despite the mediator’s recommendation, the parties do not have attorneys review the draft?  Clearly, a review by other attorneys would, among other things, emphasize that the mediator is not acting as an attorney.  Or: is the signed acknowledgement that most of us use enough?
 
Unfortunately, I have questions but no clear answers.  I know that mediators will be dissecting this case further in the year ahead and I hope to learn some of your thoughts on this case.