On Professional Practice: Advisory Ethics Opinions

Periodically, I use this column to share advisory ethics opinions on dispute resolution. The ABA offers advisory opinions to its members across all sections, even though the ABA Section of Dispute Resolution no longer offers opinions specifically to its members. In this column, I will share the opinions that have been issued.

I expected, given the extensive use of dispute resolution processes (including negotiation, mediation, arbitration, and collaborative law), there would be many opinions. I thought I would need to focus only on the most recent opinions. It turns out that there have been only four opinions on dispute resolution in the ABA database of ethics opinions and the most recent one was from 2007! After a quick refresher on these opinions, I will share some thoughts about this apparent disconnect.

It probably is not surprising that the oldest opinion is (only tangentially) related to negotiation. The question posed was whether a lawyer who suspected that opposing counsel had not conveyed their offer to their client could contact the opposing client to inquire whether the offer had been communicated (92-362). The opinion concluded that the lawyer was prohibited from doing so pursuant to Model Rule 4.2, but the lawyer could advise their own client to communicate directly with the “offeree-party” and “the most efficacious method of doing so.”

It was ten years before the next opinion was issued; this one on arbitration (02-425). The question posed was: It is permissible under the Model Rules to include in a retainer agreement with a client a provision that requires the binding arbitration of disputes concerning fees and malpractice claims, provided that the client has been fully apprised of the advantages and disadvantages of arbitration and has given her informed consent to the inclusion of the arbitration provision in the retainer agreement?  After a thoughtful discussion of the use of arbitration and rules of professional conduct, the advisory opinion concludes: “It is ethically permissible to include in a retainer agreement with a client a provision that requires the binding arbitration of fee disputes and malpractice claims provided that (1) the client has been fully apprised of the advantages and disadvantages of arbitration and has been given sufficient information to permit her to make an informed decision about whether to agree to the inclusion of the arbitration provision in the retainer agreement, and (2) the arbitration provision does not insulate the lawyer from liability or limit the liability to which she would otherwise be exposed under common and/or statutory law.”

The next opinion, 06-439, sought to apply ethical obligations for negotiation to “caucused mediation.” This opinion details the parameters of rule 4.1. Specifically, the rule prohibits “affirmative misrepresentations” but statements regarding negotiating goals or willingness to compromise, whether in the civil or criminal context, ordinarily are not considered statements of material fact within the meaning of the Rules. Thus, a lawyer may downplay a client’s willingness to compromise, or present a client’s bargaining position without disclosing the client’s ‘bottom line’ position, in an effort to reach a more favorable resolution. Of the same nature are overstatements or understatements of the strengths or weaknesses of a client’s position in litigation or otherwise, or expressions of opinion as to the value or worth of the subject matter of the negotiation. Such statements generally are not considered material facts subject to Rule 4.1.

The opinion recounts the two opposing viewpoints – that caucused mediation requires a higher standard or a lower standard – and ultimately concludes that “the same standards that apply to lawyers engaged in negotiations must apply to them in the context of caucused mediation.”

The most recent opinion, 07-447, concerns collaborative law. The first part of the opinion details some of the history of collaborative law and the broad conclusion that it is not inherently inconsistent with the Model Rules to offer collaborative services which can be considered a “species of limited scope representation.” The conclusion is: “Before representing a client in a collaborative law process, a lawyer must advise the client of the benefits and risks of participation in the process. If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law process. A lawyer who engages in collaborative resolution processes still is bound by the rules of professional conduct, including the duties of competence and diligence.”

Reviewing these opinions raises the question of why there are so few ethical opinions for lawyers on dispute resolution processes. When one considers the number of lawyers who engage as dispute resolution providers and the number of lawyers who participate in dispute resolution processes as advocates, it is surprising that so few requests for ethical guidance arise. Is it because lawyers don’t see alternative dispute resolution as any different than their regular law practice? Is it any different? Have we, the dispute resolution community of practitioners, not done enough to articulate how dispute resolution advocacy is different from litigation advocacy?

Given these results, I think we have our answer.