MA Supreme Court Rules that Mediation by a Disbarred Attorney May Constitute the Practice of Law

In In the Matter of Anthony Raoul Bott, 462 Mass. 430 (2012), an attorney resigned from the Massachusetts bar due to a disciplinary action in 2005. Five years later, and after his completion of a mediation training program, he petitioned the Court to serve as a mediator.

The issue before the Massachusetts Supreme Judicial Court was whether mediation,when performed by an attorney who has resigned from the practice of law while the subject of disciplinary investigation, or has been disbarred or suspended from the practice of law, constitutes legal work in the context of bar discipline matters.

The Court set out four factors for consideration whether mediation constitutes the practice of law when performed by a lawyer:

1. whether the type of work is customarily performed by lawyers as part of their legal practice;

2. whether the work was performed by the lawyer prior to suspension, disbarment, or resignation for misconduct;

3. whether, following suspension, disbarment, or resignation for misconduct, the lawyer has performed or seeks leave to perform the work in the same office or community, or for other lawyers; and

4. whether the work as performed by the lawyer invokes the lawyer’s professional judgment in applying legal principles to address the individual needs of clients.

The Court remanded the case for the county court to determine whether and under what conditions the attorney would be permitted to serve as a mediator.