The Professional Ethics Committee for the State Bar of Texas recently issued a written opinion regarding whether it is permissible for a Texas attorney-mediator to prepare a post-mediation written agreement memorializing any agreed-upon terms and also offer guidance to the parties regarding the inclusion of additional terms that were not previously discussed during the mediation process.
In Professional Ethics Committee Opinion Number 675, the Questions Presented state:
May a Texas lawyer, acting as a mediator, prepare and provide the parties to the mediation a proposed written agreement that memorializes the terms of the parties’ agreement reached during the mediation?
If so, may the lawyer-mediator propose terms for inclusion in the written agreement in addition to the specific terms agreed to by the parties during the mediation?
According to the Ethics Committee, a Texas attorney who serves as a mediator is an “adjudicatory official” under the Texas Disciplinary Rules of Professional Conduct.
As an “adjudicatory official” under the Rules, a lawyer acting as a mediator is subject to the requirements of Rule 1.11. Subsection (a) of that Rule provides that “[a] lawyer shall not represent anyone in connection with a matter in which the lawyer has … participated personally and substantially as an adjudicatory official … unless all parties to the proceeding consent after disclosure.” Rule 1.11(b) provides that “[a] lawyer who is an adjudicatory official shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a pending matter in which that official is participating personally and substantially.”
Despite this, the Ethics Committee stated “Assisting in memorializing mediated settlement terms is consistent with a mediator’s traditional role” pursuant to the Ethical Guidelines for Mediators. In addition, “Preparing a draft of a writing to memorialize the parties’ oral agreement is part of the normal mediation process and is distinct from drafting court papers or other ancillary legal instruments that may be needed to effectuate the settlement agreement.” The Ethics Committee added:
Although a mediator should ensure that the parties are aware that such additional terms are suggestions, a mediator does not engage in legal representation by making such suggestions, whether during the initial settlement negotiations or during the process of assisting the parties in reducing their agreement to writing.
The scope of this opinion is limited to whether a lawyer-mediator violates the Texas Disciplinary Rules of Professional Conduct by preparing and providing the parties with a draft of a written settlement agreement. This opinion does not purport to address the obligations of mediators generally, which obligations may be defined by other laws or ethical guidelines. For example, the Texas Supreme Court has advised that a mediator should ensure that unrepresented parties understand that the mediator is not providing legal representation and that there may be risks in proceeding without independent counsel or other professional advisors. (Guideline 7, Comment; Guideline 11.) In appropriate circumstances, a mediator should encourage the parties to seek legal, financial, tax, or other professional advice before, during, or after the mediation process. (Guideline 11, Comment (a).) Further, a lawyer may owe a common law duty to warn a non-client of the lawyer’s non-representation when the lawyer is aware or should have been aware that the lawyer’s conduct would have led a reasonable person to believe that the lawyer was representing that person. Burnap v. Linnartz, 914 S.W.2d 142, 149 (Tex. App.—San Antonio 1995, writ denied). Nothing in this opinion should be read to the contrary.
Ultimately, the Ethics Committee concluded:
A Texas lawyer, acting as mediator, does not violate the Texas Disciplinary Rules of Professional Conduct by preparing and providing to the parties a draft of a written agreement that memorializes the terms of the parties’ settlement reached during the course of the mediation, or by suggesting additional terms for inclusion in the draft agreement.
H/T to Don Philbin for alerting us to the Professional Ethics Committee’s opinion!