ETHICS OPINION
The Supreme Court of Texas appoints the chair and the nine members of the Professional Ethics Committee from the bar and the judiciary. According to section 81.092(c) of the Texas Government Code, “Committee opinions are not binding on the Supreme Court.”
Opinion No. 675, August 2018
QUESTIONS PRESENTED
May a Texas lawyer, acting as a mediator, prepare
and provide the parties to the mediation a proposed written agreement
that memorializes the terms of the parties’ agreement reached during the
mediation?
If so, may the lawyer-mediator propose terms for inclusion in the written agreement in addition to the specific terms agreed to by the parties during the mediation?
Statement of Facts
A Texas lawyer acts as mediator in a dispute between two parties who
reach an oral agreement during the mediation. The lawyer-mediator drafts
a written settlement agreement, incorporating the agreed terms, and
presents it to the parties for review and signing. The lawyer-mediator
suggests some provisions in the draft agreement that do not conflict
with the parties’ oral agreement but were not expressly discussed during
the mediation session.
Discussion
Under the Texas Disciplinary Rules of Professional Conduct, serving as
a mediator constitutes acting as an “adjudicatory official.” The
Terminology section of the Rules defines “Adjudicatory Official” as “a
person who serves on a ‘Tribunal,’” which is defined to include
mediators “and comparable persons empowered to resolve or to recommend a
resolution of a particular matter[.]”
As an “adjudicatory official” under the Rules, a lawyer acting as a
mediator is subject to the requirements of Rule 1.11. Subsection (a) of
that Rule provides that “[a] lawyer shall not represent anyone in
connection with a matter in which the lawyer has … participated
personally and substantially as an adjudicatory official … unless all
parties to the proceeding consent after disclosure.” Rule 1.11(b)
provides that “[a] lawyer who is an adjudicatory official shall not
negotiate for employment with any person who is involved as a party or
as attorney for a party in a pending matter in which that official is
participating personally and substantially.”
Professional Ethics Committee Opinion 583 (September 2008) considered
whether a mediator could agree to mediate a divorce between
unrepresented parties and prepare all of the documents necessary to
effect an agreed divorce if an agreement resulted from the mediation.
The agreement between the mediator and the parties thus required the
mediator to prepare the decree of divorce and other documents, possibly
including real property conveyances, releases, child support provisions,
and visitation schedules. The Opinion found that such an arrangement
would violate Rule 1.11(b) because the lawyer would be agreeing in
advance to provide legal representation to both parties in the divorce
case. Furthermore, undertaking such representation would violate Rule
1.06(a), which prohibits lawyers from representing opposing parties to
the same litigation. Opinion 583 concluded: “Under the Texas
Disciplinary Rules of Professional Conduct, a lawyer may not agree to
serve both as a mediator between parties in a divorce and as a lawyer to
prepare the divorce decree and other necessary documents to effect an
agreement resulting from the mediation. Because a divorce is a
litigation proceeding, a lawyer is not permitted to represent both
parties in preparing documents to effect the terms of an agreed
divorce.”
In contrast to the question addressed in Opinion 583, a mediator who
prepares a written settlement agreement that memorializes the terms
agreed to by the parties during the mediation is not engaged in legal
representation and therefore does not violate Rules 1.11 or 1.06.
Assisting in memorializing mediated settlement terms is consistent with
a mediator’s traditional role. See generally Ethical Guidelines
for Mediators (Tex. Sup. Ct. Misc. Docket No. 11-9062, April 11, 2011)
(“Guidelines”), Comment to Guideline 1 (“[a] mediator’s obligation is to
assist the parties in reaching a voluntary settlement”) and Guideline 14
(“[a] mediator should encourage the parties to reduce all settlement
agreements to writing”). Preparing a draft of a writing to memorialize
the parties’ oral agreement is part of the normal mediation process and
is distinct from drafting court papers or other ancillary legal
instruments that may be needed to effectuate the settlement agreement.
It is not uncommon for a mediator to include proposed terms in a draft
settlement agreement in addition to, but consistent with, the express
terms of the parties’ oral agreement. For example, some mediators may
propose that the written settlement agreement include a process for
resolving disputes that may arise under the settlement agreement, even
if the parties did not discuss that specific issue during the mediation
session. Likewise, mediators may suggest that the parties to a divorce
mediation include the language required by statute to make the
settlement agreement binding. See Tex. Family Code § 6.602
(providing that a mediated settlement agreement is binding if it
“provides, in a prominently displayed statement that is in boldfaced
type or capital letters or underlined, that the agreement is not subject
to revocation”). Although a mediator should ensure that the parties are
aware that such additional terms are suggestions, a mediator does not
engage in legal representation by making such suggestions, whether
during the initial settlement negotiations or during the process of
assisting the parties in reducing their agreement to writing.
The scope of this opinion is limited to whether a lawyer-mediator
violates the Texas Disciplinary Rules of Professional Conduct by
preparing and providing the parties with a draft of a written settlement
agreement. This opinion does not purport to address the obligations of
mediators generally, which obligations may be defined by other laws or
ethical guidelines. For example, the Texas Supreme Court has advised
that a mediator should ensure that unrepresented parties understand that
the mediator is not providing legal representation and that there may be
risks in proceeding without independent counsel or other professional
advisors. (Guideline 7, Comment; Guideline 11.) In appropriate
circumstances, a mediator should encourage the parties to seek legal,
financial, tax, or other professional advice before, during, or after
the mediation process. (Guideline 11, Comment (a).) Further, a lawyer
may owe a common law duty to warn a non-client of the lawyer’s
non-representation when the lawyer is aware or should have been aware
that the lawyer’s conduct would have led a reasonable person to believe
that the lawyer was representing that person. Burnap v.
Linnartz, 914 S.W.2d 142, 149 (Tex. App.—San Antonio 1995, writ
denied). Nothing in this opinion should be read to the contrary.
Conclusion
A Texas lawyer, acting as mediator, does not violate the Texas
Disciplinary Rules of Professional Conduct by preparing and providing to
the parties a draft of a written agreement that memorializes the terms
of the parties’ settlement reached during the course of the mediation,
or by suggesting additional terms for inclusion in the draft
agreement.TBJ
