Previously Posted on Mediation Matters By Steven G. Mehta

There is considerable debate amongst the mediation community as to whether a mediator can draft documents for the parties. Some mediators say that doing so leads to them practicing law, whereas others say that they aren't practicing law by merely being a scrivener. The Wisconsin Bar recently published an ethics opinion on this very issue. I thought that it might be interesting to review. It provides a nice summary of many of the States' opinions on this issue. The following is an excerpt of that opinion:

This article is briefly discusses the prohibitions under Wisconsin’s Rules of Professional Conduct for Attorneys (the Rules) on providing legal services to the parties of a mediation after the lawyer has served as mediator in that matter. More specifically, it addresses whether a lawyer who serves as a mediator for a divorcing pro se couple may, after a successful mediation, draft documents for the parties. In this article, “documents” refer to pleadings or other documents, such as marital settlement agreements, that are intended to be filed with the court hearing the divorce and to affect the rights of the parties. This issue has not been addressed in Wisconsin by ethics opinion or case law, but has been addressed in several other states.¹ Guidance from other jurisdictions, however, is of limited value because of an unusual feature of Wisconsin’s Rules, as discussed below.

A lawyer’s ethical responsibilities when acting as a mediator or other third-party neutral are governed by SCR 20:2.4, which provides as follows:

(a) A lawyer serves as a 3rd-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a 3rd-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a 3rd-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a 3rd-party neutral and a lawyer’s role as one who represents a client.

The Rules define the role of the third-party neutral as assisting persons who are not clients to reach a resolution of a dispute, and thus the mediator does not represent any party to the mediation. In the context of a family law matter, once any disputed issues between the parties are resolved in mediation, the parties will often look to the lawyer-mediator for assistance with the necessary documents to complete the divorce. Can the lawyer prepare these documents without violating the Rules?

To answer that question, it must first be determined whether the preparation of such documents is part of the mediation process or constitutes legal work beyond the scope of the mediation. While there appears to be no Wisconsin authority on point, this issue has been addressed in ethics opinions from other states.

For example, Utah Ethics Opinion 05-03 (2005) opined:

When a lawyer-mediator, after a successful mediation, drafts the settlement agreement, complaint, and other pleadings to implement the settlement and obtain a divorce for the parties, the lawyer-mediator is engaged in the practice of law and attempting to represent opposing parties in litigation.

Likewise, Ohio Ethics Opinion 2009-4 (2009) stated:

At issue is whether upon completion of a domestic relations mediation and preparation of a mediation report, a lawyer-mediator may prepare necessary legal documents, such as petitions, decrees, and ancillary documents, for filing by or on behalf of one or more of the parties to a domestic relations proceeding. Examples of these documents might be a Separation Agreement, Shared Parenting Plan, Petition for Dissolution of Marriage and Decree for Dissolution of Marriage, Ohio Child Support Guidelines Worksheets.

A domestic relations lawyer-mediator who goes beyond preparing the mediation report, which is required of the mediator by law and rule, into the preparation of necessary legal documents for filing by or on behalf of the parties to a domestic relations proceeding is engaging in a legal representation subsequent to the mediation.

These opinions reflect the generally agreed-upon consensus that the preparation of pleadings or other documents for filing in court constitutes the practice of law. While Wisconsin has no official definition of the practice of law,² it seems very unlikely that the Wisconsin courts would take a different position on this issue. For example, in a recently released court of appeals decision, the court stated in a footnote that a nonlawyer county employee who prepared and submitted orders and accompanying affidavits for a judge’s signature on behalf of a county agency was engaged in the unauthorized practice of law.³

Given that the preparation of such documents almost certainly constitutes the practice of law and thus representation of one or more of the parties, the question becomes whether it is permissible for a lawyer-mediator to represent one or more of the parties to the mediation in the matter subsequent to the mediation.

The Comment, paragraph [4], to SCR 20:2.4 notes that conflicts arising from service as a third-party neutral are governed by Rule 1.12. SCR 20:1.12(a) reads as follows:

Except as stated in par. (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other 3^rd-party neutral.

Many of Wisconsin’s Rules are identical to their ABA Model Rule counterparts, but SCR 20:1.12 is different from ABA Model Rule 1.12 in one important respect. The prohibition contained in SCR 20:1.12(a) on acting as an advocate in a matter after having served in a adjudicative officer or third-party neutral is not, unlike ABA Model Rule 1.12 and the equivalent Rules of many states, subject to waiver by the parties, and this is why ethics opinions from other states will often note that a lawyer may provide representation subsequent to mediation with the consent of the parties. There is, however, no possibility in Wisconsin of circumventing the restriction of the Rule by seeking the consent of the parties involved in the matter.

SCR 20:1.12(a) serves as a complete ban on representation of one or more of the parties subsequent to the mediation and thus prohibits the preparation of such documents at the conclusion of mediation. However, it would not be unusual for parties in a divorce mediation to look to a lawyer-mediator for such assistance, and the question then becomes whether the lawyer-mediator can provide any assistance at the conclusion of the mediation.

First, neither SCR 20:2.4 nor SCR 20:1.12 prohibits the lawyer-mediator from providing a written report memorializing the agreement reached in mediation. Neither is the lawyer-mediator prohibited from referring the parties to resources for pro se individuals, such as courthouse-based assistance centers that may provide help with required forms. Thus, while the lawyer-mediator may not draft pleadings or other documents to be filed with the court on behalf of the parties to the mediation, the lawyer-mediator can provide the parties with a written summary of the mediation and direct them to other resources.

Further, SCR 20:1.12(c) provides as follows:

(c) If a lawyer is disqualified by par. (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.

Thus, if the lawyer-mediator practices in a firm, conflicts arising from the role of mediator are normally imputed to every other lawyer in the firm. With the timely imposition of adequate screening measures, however, another lawyer may represent one of the parties.⁴ In a divorce, a lawyer may represent only one party because representation of both presents an unwaivable conflict of interest under SCR 20:1.7(b)(3). Such a conflict is unwaivable even if the lawyer’s representation is limited to preparation of documents.

The implications of this opinion goes further than into the context of family mediation. What about in the context of civil litigation? These opinions all discuss "pleadings and complaints." But what if the mediator only drafts the settlement document? What if the mediator is only the scrivener and simply puts into words the terms set forth by the parties? Also, what if the mediator provides a form document on which the settlement terms can be placed? The language of the Wisconsin opinion obviously address very specific issues relating to family mediations.

Personally, I don't think assisting the parties in putting the terms of the agreement together (especially when the parties are represented by their own counsel) is practicing law. But I would be interested in hearing what you have to say.