New York State Bar Association
Committee on Professional Ethics
Opinion 999 (3/28/14)
Topic: Marital Mediation
: An attorney who works exclusively in the
field of Marital Mediation, with a stated goal “to help couples resolve
problems and stay together”, may ethically refer such couples to the attorney’s
spouse, a psychiatrist, who has volunteered to provide two free couples-counseling
sessions to such couples.
Rules: 1.7; 2.4(a); 2.4(b);
an attorney who works exclusively in the field of marital mediation, with a
stated goal: “to help couples resolve problems and stay together” ethically
refer couples to the attorney’s spouse, a psychiatrist who has volunteered to
provide two free couples-counseling sessions to such couples?
2.4(a) is entitled: “Lawyer Serving as Third Party Neutral” and provides that,
“a lawyer serves as a third-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.”
Since the inquiring attorney is engaging in neutral mediation, that
attorney is not representing clients.
attorney serving as a third-party neutral must be mindful of the obligations
imposed by Rule 2.4(b), which requires that, “a lawyer serving as a third-party
neutral shall inform unrepresented parties that the lawyer is not representing
them.” Additionally, should it become
apparent 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 third-party
neutral and a lawyer’s role as one who represents a client.”
the lawyer is not engaging in the representation of a client or clients during
the course of the mediation, the lawyer would not have a personal interest
conflict under Rule 1.7 (Rule 1.7 applies only to client representation).
respect to the attorney/inquirer’s spouse’s offer to provide two free
“couples-counseling” sessions to the mediating parties, the attorney/inquirer
must also be mindful of Rule 8.4(c), which provides that an
attorney must not engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.” It may be that under the circumstances Rule 8.4(c) would require the
attorney/inquirer to make clear disclosures that the psychiatrist is in fact
the spouse of the attorney and also that the two free sessions might not be
sufficient to resolve every issue between the parties and that therefore the
attorney could conceivably derive an indirect benefit from fees charged to the
parties by the attorney/inquirer’s spouse for work beyond the two free
attorney should be aware that even though a neutral mediator is not
representing a client, the lawyer neutral may still be practicing law, and
other Rules may apply. See N.Y. State
979 (2013); N.Y. State 678 (1996).
attorney inquirer may make the referral to the attorney inquirer’s psychiatrist
spouse subject to the cautions identified above.