August 2001

Ethics and the Law
Confidentiality in the ADR Process

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

The assurance of confidentiality is essential to both a client-lawyer relationship and the success of alternative dispute resolution, particularly mediation. Without it, clients will not speak frankly and openly with their lawyers, and ADR participants will not disclose matters which may lead to resolution but which, if the ADR does not succeed, may harm them in subsequent proceedings.

A lawyer participating in ADR has a duty to maintain confidences and secrets. The source and extent of that duty depends on the role played by the lawyer. This article reviews a lawyer's duty of confidentiality (and, to a limited extent, the lawyer's duty to avoid conflicts of interest) in three roles: lawyer as client representative or advocate, lawyer as third-party neutral, and lawyer as a party in ADR proceedings. The article then briefly looks at the difficult ethical issues arising when a lawyer combines roles.

A lawyer representing as an advocate a client participant in ADR has a duty of confidentiality as to the information the lawyer obtains in the representation. The lawyer's duty is (a) an ethical duty derived from the Washington Supreme Court's Rules of Professional Conduct (RPCs), (b) a statutory duty derived from the statutory attorney-client privilege, and (c) a statutory duty derived from applicable ADR statutes. Depending on the nature of the ADR proceedings and the agreements of the parties, the lawyer may also be subject to voluntary nongovernmental professional codes not herein addressed.1 

Ethical Duty. RPC 1.6(a) requires a lawyer to maintain client confidences and secrets. RPCs 1.6(b) and 1.6(c) permit very limited disclosure to prevent a client from committing a crime, to allow a lawyer to defend himself or herself, and to disclose a breach of fiduciary responsibilities by a client who is a court-appointed fiduciary. RPC 1.6(a) states:

A lawyer shall not reveal confidences or secrets relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in sections (b) and (c).

The RPCs define a "confidence" as "information protected by the attorney-client privilege under applicable law" and a "secret" as "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." RPC 1.6 applies only to the confidences and secrets of the lawyer's own client, not to confidences or secrets of any opposing party which the lawyer may learn in the process of the ADR. The lawyer may also be bound to maintain such information as confidential (other than in connection with the immediate proceeding if the ADR should fail), however, under a client's preagreement to undertake ADR.

A lawyer should consult with a client about which confidences and secrets, if any, the lawyer believes it is appropriate for the lawyer to disclose in the process of ADR, and about the likely consequences of disclosing or not disclosing the information, so that the client may make an informed decision on whether to consent to the disclosure. Then, both for the client's information and the lawyer's own protection, the lawyer should document the consultation and the client's decisions regarding disclosure.2 

In most representations, some client confidences or secrets are likely to be disclosed without explicit client consent as being "impliedly authorized" under RPC 1.6. A lawyer's reliance on implied authorization is inherently perilous to the lawyer, since it allows a client dissatisfied with the lawyer's conduct, the result of the representation, the size of the lawyer's bill, or for any other reason, to contend the disclosure was neither impliedly nor in fact authorized, and thus violated RPC 1.6. A lawyer's misplaced reliance on implied authorization in effect guarantees satisfaction to the client. If the client is not satisfied, the client can claim breach of confidence and seek recompense from the lawyer. If the client is satisfied, the client can simply overlook the claimed breach and reap the benefits. Or, simply on the basis of an unauthorized disclosure of client confidences or secrets, the client can reap the benefits and still charge the lawyer with unethical conduct in a disciplinary grievance, even if no harm has resulted to the client. In each case, the lawyer loses.

Lawyers should not rely on implied authorization, but instead consult with the client about the proposed disclosure; explain the consequences of it; obtain from the client explicit prior authorization before making the disclosure; and thoroughly document the consultation, explanation and consent. If the client declines to consent to the proposed disclosure, the lawyer is on notice not to make the proposed disclosure. If the lawyer believes nondisclosure will lead to unsatisfactory results, the lawyer should further consult with the client and, to protect against possible disciplinary and malpractice actions against the lawyer, carefully document the consultation and client decision.

A disciplinary action arising from disclosing confidential information to a mediator illustrates the importance of obtaining explicit client consent. A lawyer was admonished for disclosing to a mediator, without the client's consent, a difference of opinion between the lawyer and the client as to settlement of a case and the client's reluctance to settle a lawsuit despite the lawyer's advice to do so. The disciplinary hearing officer found the disclosure to be negligent under RPC 1.6, since the lawyer believed he had implied permission to convey the information to the mediator and acknowledged "he had no express permission, although he could have tried to obtain it." The hearing officer observed: "The fact that such communications are not infrequently made to mediators … does not exonerate the conduct." (See discipline notice, Washington State Bar News, May 1999, page 53.) Had the lawyer first consulted with the client and obtained the client's informed consent to disclosing the information to the mediator, the lawyer would have satisfied RPC 1.6 and there would have been no disciplinary action.

Attorney-Client Privilege. When a lawyer acts as legal representative or advocate to a client and not as a third-party neutral, the lawyer's client is also protected by the statutory attorney-client privilege from the possibility that the lawyer may be forced to testify against the client in subsequent litigation. The client should be advised, however, that statements made by the client or by the lawyer to the arbitrator, mediator or others would not be protected by that privilege.

Washington's attorney-client privilege rule, RCW 5.60.060(2), is an evidentiary rule, not an ethics rule. It provides that:

An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.

As an evidentiary rule, it is directed to courts, and restricts what the lawyer or client may be compelled in court to testify about a client-lawyer communication made to obtain legal advice. It applies only to client confidences, that is, matters communicated between client and lawyer in the course of the legal representation with an expectation of confidentiality. It is narrower than the lawyer's ethical duty under RPC 1.6, which applies to both client confidences and client secrets. Under Civil Rule 26(b), privileged matters are nondiscoverable. For a discussion of the privilege in the ADR context, see Carol Needham, "When Is an Attorney Acting as an Attorney: The Scope of Attorney-Client Privilege as Applied in Corporate Negotiations," 38 So. Texas L.R. 681 (1997).

Statutory Duty of Confidentiality. In addition to the RPC 1.6 confidentiality provisions and the attorney-client privilege, a lawyer representing a client in ADR may be obligated by applicable statutes, referenced below, to maintain the confidentiality of the process at least where the ADR is pursuant to court order, mandatory by statute, or pursuant to a written agreement between the parties.

If the lawyer is not representing a client as lawyer, but is instead acting as a third-party neutral (for example, as a mediator or an arbitrator), the lawyer's duty of confidentiality is principally derived from applicable ADR statutes and not from the RPCs or the attorney-client privilege. The lawyer remains subject to the RPCs while acting as a neutral, and should be sensitive to their mandates, but many provisions of the RPCs, including RPC 1.6, simply will not be applicable to the lawyer acting as a neutral.3 

A lawyer acting as a third-party neutral arbitrator or mediator does not have a lawyer-client relationship with the mediating or arbitrating parties. Thus, the attorney-client privilege does not apply (except in the rare case of the parties being the lawyer's former law clients). If the ADR process is unsuccessful and litigation results among the ADR participants, communications between the participants and the arbitrator or mediator are not protected by the attorney-client privilege. Similarly, if the lawyer unsuccessfully acts as an intermediary under RPC 2.2, with the dispute going to litigation, the privilege does not protect any communications, since either there is no privilege because the ADR parties are not law clients, or there is a privilege, but not among commonly represented clients. (See Comment 2 to ABA Model RPC 2.2.) Other privileges, however, some of which are discussed below, may apply to ADR communications and protect the communications similarly to the attorney-client privilege.

Arbitration. An arbitrator serves a quasi-judicial function (at least in mandatory binding arbitration) and holds testimonial immunity similar to that of a judge. See Washington Superior Court Mandatory Arbitration Rule 7.2(d). Thus, the arbitrator may not be called as a witness at the trial de novo, nor is testimony of the arbitrator admissible to determine the meaning of an arbitration award, nor should the arbitrator volunteer to produce testimony that would impeach the award. Similarly, since once an arbitration award has been made and the rights of the parties to the claims at issue are merged into the award, testimony of the parties is limited after the litigation, although arbitration testimony is admissible in a de novo hearing as long as not identified as having been given in an arbitration hearing. MAR 7.2(b)(2).4

Because participants generally expect arbitration awards and opinions to be confidential, although there is no general statutory or rule authority so providing, lawyers should consult with their clients about arbitration and the possible limits of confidentiality, and should explicitly address confidentiality in any agreement to arbitrate.

Although Washington's current RPCs provide little guidance for lawyers acting as third-party neutrals,5 some assistance is provided by the American Bar Association's Commission on Evaluation of the Rules of Professional Conduct. In its May 2001 Final Report it proposes to delete Model RPC 2.2 (identical to Washington's RPC 2.2), dealing with lawyers acting as intermediaries, and to adopt a new Model RPC 2.4, captioned "Lawyer Serving as Third-Party Neutral," dealing with the role of a lawyer serving as a third-party neutral. Proposed ABA Model RPC 2.4 states:

(a) 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. Service as a third-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 third-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 third-party neutral and a lawyer's role as one who represents a client.

Proposed official comments to the rule explain the rule and give guidance to lawyers serving as third-party neutrals. Comments (3) through (5) are most useful:

(3) Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer's service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer's role as third-party neutral and a lawyer's role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

(4) A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer's law firm are addressed in Rule 1.12.

(5) Lawyers who represent clients in alternative dispute-resolution processes are governed by the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer's duty of candor is governed by Rule 3.3. Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1.

The commission's extensive proposals are scheduled to be submitted in August 2001 to the ABA House of Delegates. The House will not likely vote on them until it has debated all of the commission's proposals, unlikely to occur until sometime in 2002 or 2003. The proposals have no effect in Washington unless and until they are adopted by the Washington State Supreme Court.

Mediation. Washington has adopted considerable statutory protection for confidentiality in mediation. RCW 5.60.070 provides:

(1) If there is a court order to mediate, a written agreement between the parties to mediate, or if mediation is mandated under RCW 7.70.100, then any communication made or materials submitted in, or in connection with, the mediation proceeding, whether made or submitted to or by the mediator, a mediator organization, a party, or any person present, are privileged and confidential and are not subject to disclosure in any judicial proceeding or administrative proceeding except:

(a) When all parties to the mediation agree, in writing, to disclosure;

(b) When the written materials or tangible evidence are otherwise subject to discovery, and were not prepared specifically for use in and actually used in the mediation proceeding;

(c) When a written agreement to mediate permits disclosure;

(d) When disclosure is mandated by statute;

(e) When the written materials consist of a written settlement agreement or other agreement signed by the parties resulting from a mediation proceeding;

(f) When those communications or written materials pertain solely to administrative matters incidental to the mediation proceeding, including the agreement to mediate; or

(g) In a subsequent action between the mediator and a party to the mediation arising out of the mediation.

(2) When there is a court order, a written agreement to mediate, or when mediation is mandated under RCW 7.70.100, as described in subsection (1) of this section, the mediator or a representative of a mediation organization shall not testify in any judicial or administrative proceeding unless:

(a) All parties to the mediation and the mediator agree in writing; or

(b) In an action described in subsection (1)(g) of this section.

The protection provided by RCW 5.60.070(2) is generally comparable to that provided by the attorney-client privilege, but the information covered is even broader: "any communication made or materials submitted in, or in connection with, the mediation proceeding, whether made or submitted to or by the mediator, a mediation organization, a party, or any person present."

For this statutory provision to apply, however, the mediation must be either (1) pursuant to a court order, or (2) pursuant to a written agreement to mediate, or (3) mandated under RCW 7.70.100 (relating to damage claims arising from injury occurring as a result of health care provided after July 1, 1993). Otherwise, except as provided in more specialized statutory ADR provisions, the mediator may be required to testify, and there is no protection of any confidentiality. RCW 5.60.072 also specifically provides that where mediation is under the provisions of a federal or state collective bargaining law or similar statute, the agency's rules, and not RCW 560.070, govern questions of privilege and confidentiality. However, this does not override the lawyer-as-advocate's RPC 1.6 duties. Other statutes, such as those dealing with abuse of children, developmentally disabled persons or the elderly, may also require disclosure by the third-party neutral. (See RCW 26.44.030(1), RCW 74.34.030.)

The May 4, 2001 interim draft of the proposed Uniform Mediation Act (UMA), as published by the National Conference of Commissions on Uniform State Laws, recognizes the paramount importance of confidentiality in the mediation process. A prefatory note by the drafters observes: "The primary focus of this Act is a limited one — to provide a privilege that assures confidentiality in legal proceedings."

The draft reflects throughout its provisions the central importance of confidentiality. Section 2(1) states that, in applying and construing the UMA, consideration should be given to "the need to promote candor of parties through confidentiality of the mediation process, subject only to the need for disclosure to accommodate specific and compelling societal interests." Section 5(a) states that a mediation communication is confidential and, if privileged, is not subject to discovery or admissible in evidence in a proceeding, while Section 5(b) defines the scope of the privilege. Section 6 covers both waiver and preclusion of the privilege, while Section 7 covers exceptions to the privilege, many of which are similar to those set out in RCW 5.60.070. Finally, Section 8 generally prohibits disclosures about the mediation by the mediator. The underlying theme of the UMA is that mediation settlement is promoted through candor, and candor is promoted through assuring participants that their frank exchanges in mediation will be confidential and will not be used to their detriment in later court proceedings or other adjudicatory processes. The draft UMA is, of course, merely a proposed uniform model act without legal effect in Washington state unless and until adopted by Washington.

Specialized ADR. Several of Washington's more specialized statutory ADR provisions also protect confidential information and make it privileged. For example, RCW 7.75 authorizes establishment of community resolution centers to resolve disputes using ADR procedures. RCW 7.75.050 generally makes confidential and privileged a wide range of communications and information related thereto:

All memoranda, work notes or products, or case files of centers established under this chapter are confidential and privileged and are not subject to disclosure in any judicial or administrative proceeding unless the court or administrative tribunal determines that the materials were submitted by a participant to the center for the purpose of avoiding discovery of the material in a subsequent proceeding. Any communication relating to the subject matter of the resolution made during the resolution process by any participant, mediator, or any other person is a privileged communication and is not subject to disclosure in any judicial or administrative proceeding unless all parties to the communication waive the privilege. The foregoing privilege and limitation on evidentiary use does not apply to any communication of a threat that injury or damage may be inflicted on any person or on the property of a party to the dispute, to the extent the communication may be relevant evidence in a criminal matter.

Similarly, RCW 26.09.015(1) authorizes mediations in domestic-relations cases "to reduce acrimony which may exist between the parties and to develop an agreement assuring the child's close and continuing contact with both parents after the marriage is dissolved." Under RCW 26.09. 015(2) the "mediator may be a member of the professional staff of a family court or mental health services agency, or may be any other person or agency designated by the court." RCW 26.09(3) then provides for confidentiality and testimonial privilege in predissolution decree domestic relations cases:

Mediation proceedings shall be held in private and shall be confidential. The mediator shall not testify as to any aspect of the mediation proceedings. This subsection shall not apply to postdecree mediation required pursuant to a parenting plan.

The rights to confidentiality and privilege outside of the specific statutory ADR privilege/confidentiality provisions referenced above is more uncertain. Evidence Rule 408 generally precludes admission of evidence relating to offers or attempts to compromise a dispute, but it is not clear that evidence rules require exclusion of mediation discussions other than those covered by specific statutes. Courts have been reluctant to admit confidential mediation information on the basis that doing so would undermine candid mediation, but on occasion have done so.6 Although mediators generally require parties to agree to maintain mediation sessions as confidential, and not to subpoena or call the mediator to testify, agreements to suppress evidence are generally void as against public policy, and for that reason confidentiality may be inappropriate in certain cases.

A lawyer advising a client involved in a mediation should also consult with the client as to practical limitations on confidentiality and privilege, and the consequences of disclosure, especially if there is a reasonable likelihood of subsequent litigation. Even if a matter is treated as confidential or privileged, disclosure of it may still lead to other nonprivileged or nonconfidential information.

Although the RPCs generally assume the existence of a client-lawyer relationship, that relationship is not required for some of its provisions to apply. A lawyer may be sanctioned for conduct not involving the practice of law.7 For example, where a lawyer is acting pro se, the lawyer is still prohibited by RPC 4.2 from communicating with the opposing represented party about the matter of the representation. Similarly, RPC 8.4 prohibits the lawyer, whether or not acting as a lawyer, from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, or conduct that is prejudicial to the administration of justice. The Washington Supreme Court recently disbarred a lawyer for fraudulent conduct despite the lawyer's contention that the conduct in question was "completely outside the practice of law." In re Discipline of Huddleston, 137 Wn.2d 560 (1999).

A lawyer as a party in ADR proceedings is not subject to RPC 1.6's requirement to maintain the client's confidences and secrets either because the lawyer is not acting as a lawyer and hence there is no client, or because the lawyer is acting as a lawyer but is also the client, and RPC 1.6 does not require such maintenance where the client has consented to the disclosure. The lawyer remains subject, however, to the other statutory and rule provisions, referenced above, requiring confidentiality of the ADR proceedings to the same extent as other participants in the proceedings. A lawyer failing to satisfy those requirements, even though not acting as a lawyer, may be subject to disciplinary action under RPC 8.4(d) for engaging in conduct that is prejudicial to the administration of justice.

It is not unusual for ADR parties, particularly when unrepresented by counsel, to want a third-party neutral lawyer to provide legal advice or opinions during the course of the ADR process, and to provide documentation at the conclusion of the process. Parties often select a lawyer as the neutral precisely because the neutral has legal expertise in the area of the dispute. A lawyer's assumption of dual roles, as third-party neutral and as legal representative of the parties, even when undertaken consecutively and not concurrently, raises serious ethical issues under the RPCs' conflict-of-interest provisions, as well as great practical dangers for all involved, particularly when the parties are not represented by separate lawyers.

When concluding an arbitration, an arbitrator typically memorializes the arbitration award in a written, often very conclusory, decision or opinion. A mediation's conclusion differs in that the mediator does not make an award; rather, the parties reach their own agreement facilitated, or goaded, by the mediator. Typically, in concluding a mediation a mediator will provide a written outline of the general terms of the agreement, but that outline is usually not intended to be an operative legal document implementing the mediated agreement. Parties unrepresented by counsel, however, may expect the mediator to prepare such a document. The possibility of a mediator doing so gives rise to many ethical issues.

At some stage in the ADR process, may a lawyer third-party neutral undertake joint representation of ADR parties asking for legal information or advice, or asking the neutral to draft settlement documents? Is provision of legal "information" permissible (as not constituting the practice of law), while the provision of "advice" (as constituting the practice of law) not permissible? Or is the distinction between information and advice meaningless? Does it matter if the neutral volunteers such advice or information as opposed to doing so in response to a request by one or both parties? If the parties are represented by separate counsel, may the third-party neutral lawyer draft settlement documents on the basis of being a mere amanuensis? If the neutral may not draft settlement documents during the course of the ADR process, may the neutral do so after the ADR process is complete, in effect concluding the role of neutral and then undertaking the role of joint representative of the ADR participants? Does it matter if the ADR process is wholly successful (all issues are resolved with no dispute left between the parties), or only partially successful?

At best, the RPCs provide partial answers to these questions. Clearly a third-party neutral may not simultaneously act as a "neutral" and as an advocate or adviser for only one party in the course of the ADR, since by definition the neutral would not be neutral. RPC 1.7 generally prohibits a lawyer from concurrently representing two clients if the representation of one would be directly adverse to the other, or may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interests. RPC 1.9 generally prohibits a lawyer from representing a person if the representation would be materially adverse to the interests of a former client or involve using the former client's confidences or secrets to the disadvantage of the former client. In both cases, however, with full disclosure to and consent by the clients (or former clients), the lawyer generally may undertake a dual representation, provided that under RPC 1.7 the lawyer reasonably believes the representation will not adversely affect the lawyer-client relationship with the other client. The test of reasonableness is both subjective in requiring the lawyer to actually believe no such adverse affect will take place, and objective in requiring that a reasonably competent and prudent lawyer would likewise so conclude.

Washington's RPC 1.12, captioned "Former Judge, Arbitrator, or Mediator," permits a lawyer who has served as an arbitrator or mediator to represent the parties thereto after the ADR process is complete, but only if all parties to the proceeding consent after disclosure. The language of the rule, and the use of the indefinite and uncertain term "matter," suggests that it applies only where the ADR process is concluded, and not during that process. RPC 1.12(a) states:

Except as stated in section (d)[permitting an arbitrator selected as a partisan of a party on a multi-member arbitration panel to thereafter represent that party], 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, arbitrator, mediator or law clerk to such a person, unless all parties to the proceeding consent after disclosure.

RPC 1.12(c) provides that if a lawyer is disqualified from a representation under RPC 1.12(a), no other lawyer in that lawyer's firm may knowingly undertake or continue a representation in the matter unless the disqualified lawyer is screened from the matter and fee, and unless written notice is given. RPC 1.12, while permitting a consented-legal representation subsequent to an adjudication or ADR process, does not override the "reasonableness" requirements of RPC 1.7. The former mediator or arbitrator lawyer must still satisfy the tests of reasonableness. The author believes that test can be satisfied only rarely.

If, at the end of the ADR, the lawyer neutral decides to undertake a limited joint representation of the parties at their request, to create, for example, the requested legal documentation, the lawyer is entering a dark world where unknown and invisible disciplinary and malpractice-breathing ethical dragons and demons lurk and lie in wait for the unwary lawyer. It is an underworld that could easily be strewn with lawyer carcasses. It is a world far better to be avoided.

If the lawyer nevertheless decides to undertake dual representation following ADR, since the RPCs provide little practical guidance, here are some suggestions on how to lessen the risks. The lawyer must first and foremost determine that he or she can in fact undertake the dual representation without violating the RPC-conflicts provisions. In most cases, including most marital dissolutions, it is unlikely the lawyer can reasonably conclude the representation will not be adversely affected, and thus unlikely the requirements of RPC 1.7 can be satisfied.

If the RPC 1.7 tests can be met, however, the lawyer should document his or her analysis of the RPCs permitting the representation, and require a limited legal engagement letter separate and distinct from the ADR engagement letter. The legal engagement should not be offered or entered into, or even considered, until the ADR process is complete. When initially undertaking to act as a neutral, the lawyer should not imply that as a matter of course the lawyer will prepare the settlement documents at the end of the mediation.

The lawyer should consult with the potential legal clients about the loss, due to the proposed joint legal representation, of confidentiality and its consequences, particularly if during the ADR the parties caucused with the neutral, thus learning confidential information of one party not known by the other party. The consultation should also cover whether all confidential information previously given to the neutral during the course of ADR is now to be disclosed to both joint clients, since in a joint representation each client is entitled to know all confidences unless otherwise agreed to, or whether prior disclosed confidential information is to remain confidential.

The consultation, and the documentation thereof, should be meticulous, both to assist the potential legal clients make informed decisions and to protect the lawyer. If there is to be a joint waiver of confidentiality for disclosure to the other, it should be written and explicit. The lawyer should advise each participant to seek independent legal advice as to whether such disclosure is in their respective best interests, although practically such advice is often unlikely to be available or affordable. In undertaking a legal role after acting as a neutral, especially with unsophisticated clients, the lawyer should beware that the difference between representing neither client and representing both clients is perilously slim.8 

Although RPC 2.2, captioned "Intermediary," facially allows a dual representation, Comment 2 to ABA Model RPC 2.2, on which Washington's RPC 2.2 is based, indicates that the rule does not apply to a lawyer acting as a neutral among nonclients of the lawyer "even where the lawyer has been appointed with the concurrence of the parties."9 Comments to ABA Model RPC 2.2 observe that the lawyer's conduct may instead be governed by other ethics codes applicable to neutrals, and stress that where RPC 2.2 does apply, the lawyer must maintain the confidentiality of client information under RPC 1.6. If RPC 2.2 does not apply (as in the usual case of a lawyer acting as a third-party neutral to two or more persons, none of whom are the lawyer's clients), then RPC 1.6 does not apply so long as the ADR parties do not become the lawyer's legal clients.

In one of the more extensive discussions of a lawyer acting as a mediator, Opinion 736 (January 3, 2001) of the New York State Bar Association Committee on Professional Ethics construes New York's ethics code to generally prohibit a lawyer mediator from drafting legal documents at the conclusion of a mediation. The principal ethical issue considered is whether a lawyer may reasonably conclude that one lawyer can competently represent the interests of both clients. The opinion first observes that the committee's prior Opinion 258 (1972) had concluded that:

It would be improper for a lawyer to represent both husband and wife at any stage of a marital problem, even with full disclosure and informed consent of both parties because the likelihood of prejudice was so great in this type of matter as to make impossible adequate representation of both spouses, even where the separation is "friendly" and the divorce uncontested.

In Opinion 736, the committee repudiates this per se rejection of dual representation on the basis that there could in fact be occasions when a "disinterested lawyer" might reasonably believe "that the lawyer-mediator can competently represent the interests of each spouse by preparing and filing the settlement agreement and divorce papers." The concept of a "disinterested lawyer" under New York's code is the equivalent under Washington's RPCs to a lawyer acting "reasonably," which Washington's RPCs define as the "conduct of a reasonably prudent and competent lawyer." The committee cautions, however, that such a situation is a rarity:

We remain convinced … that in the generality of cases, even if the spouses agree on the broad outlines of a settlement at the conclusion of the mediation, a disinterested lawyer will not be able to conclude that he or she can competently represent the interests of each spouse. Although there is a general agreement on broad settlement terms, many particulars remain to be worked out in the course of drafting a settlement agreement. Even with respect to the terms on which there appears to be agreement, one or both spouses may benefit from a disinterested lawyer's advice as to whether the agreement meets with the spouse's legitimate objectives and what other procedural alternatives may be available to achieve more favorable terms. One or both spouses may thus benefit from a disinterested lawyer's advice as to (1) his or her legal options, (2) how the settlement terms will or will not meet the client's interests, and (3) alternative ways to fashion a settlement agreement. Likewise, one or both may benefit from the assistance of a disinterested lawyer in negotiating the terms and/or thereafter drafting the terms.

The opinion goes on to specify the very narrow circumstances under which a representation of both spouses in a marital dissolution may be acceptable:

[T]he lawyer may not represent both spouses unless the lawyer objectively concludes that, in the particular case, the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses' objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents. In those circumstances, the per se ban of N.Y. State 258 should be relaxed to permit spouses to avoid the expense incident to separate representation and permit them to consummate a truly consensual parting, provided both spouses consent to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.10 

Finally, the opinion cautions that a lawyer, after having served as mediator between the two spouses, may only rarely thereafter act as a lawyer in preparing settlement documents:

Because the "disinterested lawyer" test cannot easily be met, the lawyer-mediator may not prepare and file a settlement agreement and divorce papers after the conclusion of the mediation as a matter of regular practice on behalf of spouses who are otherwise unrepresented.11 Nor may the lawyer-mediator, in advertising, a retainer agreement, or other communications with potential clients, state or imply that, in the ordinary course, the lawyer will routinely prepare and file the divorce papers after the mediation is completed. The likelihood that joint representation will satisfy the standard of … [New York's ethics rule] is so uncertain prior to the start of the mediation that it would be misleading for the lawyer to indicate that preparing and filing the divorce papers for the spouses is part of the lawyer's standard practice.

While this opinion addresses the situation of a lawyer mediating as a neutral a marital dissolution and then considers whether the lawyer may provide legal services as a lawyer in preparing documents to effect the mediated result, its rationale applies equally well in the broader context of ADR. Only rarely should a lawyer, after mediating, create legal documents or otherwise undertake joint representation of the ADR participants, but if the lawyer does so, it should be done with exceptional caution.

A lawyer undertaking any role in ADR must first identify his or her role and the resultant duties and responsibilities. A lawyer's duty of confidentiality differs significantly by what role the lawyer undertakes. If the lawyer combines, even sequentially, the role of a third-party neutral with that of a lawyer representative, the lawyer is faced with very difficult ethical issues for which there are few good answers, especially where the parties are unrepresented by independent counsel. A lawyer seeking to combine the roles should do so only after completion of the ADR process, only after very careful analysis of the RPC-conflicts provisions, only after careful consultation with and consent by all parties, and even then only rarely. Then, the lawyer should meticulously document everything, review his malpractice insurance policy, and enter the dark world of dual roles in ADR.

1. The two principal voluntary ethics codes in ADR are the Code of Ethics for Arbitration in Commercial Disputes (prepared by a joint committee of the American Bar Association and the American Arbitration Association) and the Model Standards of Conduct for Mediators (prepared jointly by the American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution).

2. A lawyer's duty to protect client confidences and secrets may conflict with the lawyer's duty of candor. In ADR, the lawyer's duty of candor as an advocate is governed by RPC 3.3 if the proceeding, such as binding arbitration, is before a tribunal; otherwise, the duty of candor to the third-party neutral and others is governed by RPC 4.1.

3. RPC 1.6 generally does not apply to the lawyer-neutral as to information arising in ADR because the lawyer when so acting does not have a lawyer-client relationship with the ADR participants. If they were clients (as when the lawyer is conducting intermediation under RPC 2.2), or former clients, RPC 1.6 and 1.9 would prohibit the lawyer-neutral from disclosing in ADR information the lawyer obtained as lawyer-advocate as to the lawyer's current or past law clients.

The RPC's conflict-of-interest provisions apply to a lawyer acting as a third-party neutral. RPC 1.7(b) prohibits a lawyer from representing a client if the representation may be materially limited by the lawyer's responsibilities to third parties. Prior to acting as a third-party neutral, a lawyer should check for conflicts. See District of Columbia Bar Association Opinion 276.

RPC 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. For example, a lawyer may not misrepresent his or her status as a neutral if the lawyer is not in fact neutral: if the lawyer or his or her firm previously represented an ADR party, or knew information derived from the practice of law about a party, or had some other relationship with a party, the lawyer's representation of neutrality without further disclosure would raise issues under RPC 8.4(c).

4.See Alternate Dispute Resolution Deskbook: Arbitration and Mediation in Washington, 2d Ed. (Washington State Bar Association, 1995, supplemented 1998) ["Deskbook"], § 12.6.

5. For an overview of ADR confidentiality in Washington, see Deskbook, §12.6.

6. See Deskbook, §12.6(2)(a).

7. See Althoff, "Big Brother is Watching: Discipline for 'Private' Conduct," The Professional Lawyer, 2000 Symposium Issue, p. 81, reprinted in Washington State Bar News, August 2000, p. 38 (Part I), and September 2000, p. 39 (Part II).

8. Ethics Opinion 80-23 (1981) of the Association of the Bar of the City of New York observes, in the context of matrimonial mediation: "informing the parties that the lawyer 'represents' neither party and obtaining their consent, even after a full explanation of the risks, may not be meaningful; the distinction between representing both parties and not representing either, in such circumstances, may be illusory."

9. Because of the widespread misunderstanding of the concept of intermediation under Model RPC 2.2, the ABA Ethics 2000 Commission has recommended deleting that rule and moving its commentary to ABA Model RPC 1.7 as reflecting merely a variant of other conflicts.

10. The opinion's footnote states: "Full disclosure should include advising both clients of the risk of a legal challenge, since 'the absence of independent representation is a significant factor to be taken into consideration when determining whether a separation agreement was freely and fairly entered into' when 'the same attorney represented both parties in the preparation of the agreement.'"

11. The opinion's footnote states: "If the spouses are independently represented by lawyers who are prepared, insofar as necessary, to advise about the settlement terms, negotiate unresolved terms, and review the settlement agreement and other papers, then we see no restriction on the lawyer-mediator serving as drafter and reducing to writing an oral agreement that encompasses a mutually agreeable understanding between the parties on all issues. In essence, the lawyer will then be serving as a mere amanuensis, and will not be exercising independent professional judgment on behalf of one spouse or the other with respect to the settlement terms."

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