Mediation – Preparation of Documents – An opinion from a Texas ethics committee found that a lawyer acting as a mediator who also prepared the ancillary documents for both parties was in violation of that states rules of professional conduct. The opinion noted that while acting as a mediator did not constitute the practice of law, preparing the documents that effect the divorce did constitute the practice of law. This, according to the opinion, was akin to representing opposing parties and, therefore, an ethical breach. In Massachusetts, where it is common practice for lawyer-mediators to draft agreements and related documents, and where such drafting clearly constitutes the practice of law, see Matter of Kafkas, 451 Mass. 1001 (2008), there are, nevertheless, presently no such ethical constraints. An ethics opinion from the Massachusetts Bar Association squarely addressed the issue in 1985, stating that “an attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement and must obtain the informed consent of the parties to such joint representation.” MBA Ethics Opinion 85-3 (1985). Texas State Bar Professional Ethics Comm. Op. 583 9/08
Attorney Jonathan Fields of Fields and Dennis, Wellesley, Massachusetts is a family law and divorce lawyer serving the Greater Boston Massachusetts region.
