Elayne E. Greenberg, Assistant Dean for Dispute Resolution, Professor of Legal Practice, and Director of the Hugh L. Carey Center for Dispute Resolution at St. John’s University School of Law, has written an interesting article titled “Acts Like a Lawyer, Talks Like a Lawyer… Non-Lawyer Advocates Representing Parties in Dispute Resolution,” NYSBA New York Dispute Resolution Lawyer, Vol. 11, No. 1 (Spring 2018); St. John’s Legal Studies Research Paper 18-0011 (May 21, 2018). In her publication, Assistant Dean Greenberg examines the ethical implications of non-lawyers representing individuals in alternative dispute resolution proceedings.
The abstract states:
The Ethical Issue:
What are the ethical implications for lawyer mediators, arbitrators and dispute resolution providers when the lines between the roles of lawyers and the non-lawyers who are representing clients in dispute resolution become blurry? Traditionally, non-lawyer advocates (hereinafter NARs) have represented clients in the negotiations, mediation and arbitration of legal matters without cause for concern. Yes, labor union representatives, sports agents, and special education advocates are three familiar examples of non-lawyers who represent clients in negotiations, mediations and arbitrations, informing clients of their legal rights. Routinely, the lawyers and neutrals presiding over the dispute resolution procedure have warmly welcomed these non-lawyers, viewing these non-lawyers as valued participants who provide their clients beneficial subject matter expertise to help resolve the legal dispute at hand. However, that welcome has now turned tepid and tentative as FINRA and its neutrals question the ethics of some of those non-lawyers who are representing clients in FINRA arbitration.
The FINRA-NAR issue is actually a reflection of a broader problem: How do we ensure access to justice for all? For many, the escalating costs of retaining lawyers presents a barrier in their quest to access justice. In lieu of lawyers, some are seeking a more affordable alternative and are turning to NARs. This topic calls into question whether we truly believe in the clients’ right to self-determination in which they are free to choose their own representative when participating in a dispute resolution procedure or whether we adopt a more maternalistic stance, believing clients need to be protected when selecting a representative.
We are also forced to confront the limitations of access to justice for all and the remedies we are willing to support to right this egregious wrong. Yes, this problem is also entrenched in the politics of maintaining the exclusivity of the legal profession. Ultimately, however, this issue forces us to personally consider as lawyer mediators and arbitrators what it means to us to maintain a dispute resolution procedure of integrity.
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