Lawyer-Mediators: Time to Update your Mediation Agreement?

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics and the Committee on the Unauthorized Practice of Law recently considered the question of whether a lawyer, who provides lobbying and governmental affairs services at a company (not a law firm practicing law), could use the designation “Esq.” after his name on that company’s letterhead. The reasoning of the joint opinion (ACPE 730 and UPL 52, December 15, 2015) may be instructive to lawyer-mediators in several respects.

Rephrasing the questions for mediation: (1) May lawyers provide mediation services at a company that is not a law firm? (2) May lawyer-mediators providing mediation services through a company (not a law firm) use the designation ”Esquire” or “Esq.” after their names? (3) May lawyers providing mediation services through their law firm use the designation “Esquire” or “Esq.”?

It is settled in New Jersey that a lawyer serving as a mediator is not providing “legal services” (representing either or both or all of the parties or giving legal advice). A lawyer acting as a third party neutral (mediator or arbitrator) is acting as a lawyer, but he/she is not necessarily engaging in a business separate from his/her law practice. ACPE 676, CAA 18. A lawyer-lobbyist may or may not be providing legal services. A lobbying company which is not a law firm is not providing (and may not provide) legal services. In any event, a lobbying or mediating firm cannot direct or regulate a lawyers’ professional judgment in rendering legal services. R.P.C. 5.4(c).
Joint Opinion 730/52 holds that lawyers may provide lobbying and governmental services in a non-law firm setting, “but they cannot hold themselves out as lawyers and they must communicate to the customers that they do not provide legal services or offer the protections of a lawyer-client relationship.” The Committees note that “lawyers are permitted to engage in non-legal businesses, though ethics concerns arise when there is overlap between the legal business and the non-legal business.” Presumably, this also applies to mediation practices. It thus appears that lawyers may provide mediation services through a company that is not a law firm.

The firm must take reasonable measures to communicate to its customers that (1) the protections of a lawyer-client relationship are not present and (2) no legal services are being provided. This should be in advance of providing services, before entering into an agreement, and in writing. RPC 2.4(b) provides
(b) A lawyer serving as a third-party neutral shall inform the 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 third-party neutral and a lawyer’s role as one who represents a client.

This is also the case for lawyers in a law firm who are providing mediation services.
The most interesting part of the opinions was the answer to the question about using the “Esq.” designation. The Committees found that “Use of this designation [“Esq.”] in certain contexts implies that the person is holding himself or herself out as available to render legal services or provide legal advice” and held that “lawyers at lobbying and governmental services companies that are not law firms should not be designated as ‘Esquire’ or ‘Esq.’”

The lessons from this Joint Opinion for lawyer-mediators include:
(1) It is permissible to join a mediation firm with non-lawyer mediators (such as social workers, psychologists, accountants, engineers and other professionals and non-professionals). However, non-lawyer mediators may not join a law firm that provides mediation services. RPC 5.4(b)
(2) A mediation firm cannot provide legal services or legal advice.
(3) Preferably the location of the mediation firm is separate from the lawyers’ law firm.
(4) Clients must be notified that
(a) There is no lawyer-client relationship,
(b) The protections of a lawyer-client relationship are not present, and
(c) No legal services are or legal advice is being provided.
(5) The notifications in lesson 4, above, should be
(a) In advance of (or included in) the mediation agreement
(b) In writing
(6) Lawyer-mediators should not use the designation “Esquire” or “Esq.” in letterhead or other mediation materials.

With these lessons in mind, it may be worthwhile for lawyer-mediators to review and update their mediation agreements and other materials. To determine how applicable these lessons may be to a mediation practice, first analyze the structure of the practice. Is it part of a law practice or separate? Is there one set of accounting books or two? Are there separate locations?

If the mediation practice is part of a law practice, then lessons 4 and 5 are critical. To the extent that hand-outs or other materials are provided to mediation clients, use of “Esq.” and/or “Esquire” is probably not a good idea.

If the mediation practice is separate from a law practice, then lesson 2, 4, 5 and 6 are very important. It is critical that there be no confusion by the clients about what services are being provided. Location, diplomas, licenses, awards on display, and titles can create confusion for clients.

Do the documents sufficiently notify clients that (a) no lawyer-client relationship is created or exists, (b) no legal services will be provided, (c) no legal advice will be given, and (d) the client(s) do not have the protections of a lawyer-client relationship? If the designation “Esquire” or “Esq.” is used in documents, should it be changed? Presumably the designation “J.D.” conveys that one has a law degree (and legal experience), but does not indicate availability “to render legal services or provide legal advice.” Notwithstanding that mediation clients do not have the protections of a lawyer-client relationship, they do have protections under the New Jersey Uniform Mediation Act, the Rules of Court and case law.

CAVEAT: This article is not intended to be or offer legal advice.
This having been said, there are larger questions for consideration. Disputants often select mediators and arbitrators because of their past experience. Knowledge or experience with the type of dispute is thought to be helpful in finding a resolution. How should other professions and professional designations be treated? Should certified public accountants, professional engineers, social workers, psychologists, architects and others be prohibited from using their professional designations in mediation and arbitration materials? Should the limitation apply to the professions or to all licensed persons? How can a third party neutral make his or her education and experience known without implicitly offering availability to provide professional services?

Can retired or former judges use their title(s) when mediating or arbitrating? Lawyers learn the custom once a judge, always a judge, and that judges should be addressed as judges even after they have left the bench. But do disputants understand that the former judge is not judging or deciding the resolution of the dispute? Experience indicates that many disputant clients do not make that distinction and think that the judge will decide the matter, regardless of what counsel tells them. Use of the title “Judge” by counsel and the neutral does not reinforce the distinction. Is the title “judge” consistent or inconsistent with a lawyer’s obligations under RPC 2.4(b)?
Rule 5.9 of the New Jersey Code of Judicial Conduct (effective September 1, 2016) [https://www.judiciary.state.nj.us/notices/2016/n160808a.pdf ] provides that a “judge shall not act as an arbitrator or mediator or perform other judicial functions apart from the judge’s official duties unless expressly authorized by law.” Use of the title “Judge” when used by an arbitrator or mediator (or counsel or the disputants) creates an inconsistency between the title and the role. It won’t cause confusion for the lawyers participating in the process, but it may confuse lay persons. In addition, Rule 5.10 [https://www.judiciary.state.nj.us/notices/2016/n160808a.pdf ] of the New Jersey Code of Judicial Conduct prohibits judges from practicing law. While serving as a third party neutral is not providing “legal services”, it may be part of a law practice.
What do you think? Should former judges and other professionals/licensees who arbitrate or mediate drop their titles?

                       

Robert Lenrow

Robert J. Lenrow, APM, is a mediator and attorney practicing in northern New Jersey. He received the 2012 Richard K. Jeydel Award for Excellence in ADR . He is  accredited as a commercial and family mediator by the New Jersey Association of Professional Mediators (NJAPM). He is a former officer… MORE >