011322 NYEO, ETH 1236

• Case Date: January 13, 2022
• Court: New York

ETH 1236 Opinion 1236 New York Ethics Opinion New York State Bar Association Committee on Professional Ethics January 13, 2022          Modifies N.Y. State 613 (1990)          Topic: Divorce mediation, limited scope legal services, non-resident lawyers, ghostwriting          Digest: A New York lawyer may perform divorce mediation services for New York clients from his office in another state, provided that he makes effective disclosure of the differences in his role as mediator/neutral and lawyer and explains that he is not representing either party when he serves as a mediator. Where the mediation is successful, the lawyer may thereafter represent one of the parties to prepare a settlement agreement or other papers for the client to file pro se in the divorce proceeding, provided the lawyer obtains informed written consent from the non-represented mediation party.          A New York lawyer may also, in a pending or contemplated divorce action, enter a limited scope retainer with New York clients undertaking to provide legal advice, negotiate a settlement, or prepare legal documents for filing by the client pro se with a court in New York, provided the lawyer informs the prospective client regarding the relative risks of limited representation and benefits of full-service representation. In connection with providing these legal services, the New York lawyer cannot call himself a “legal consultant” instead of a lawyer.          A New York lawyer who resides in Florida but represents New York divorce clients over the internet from his law office in Florida must comply with the physical office requirement of New York Judiciary Law § 470.          Rules: 1.2(c), 1.12(b), 2.4, 8.4(b)-(c)          FACTS:          1. The inquirer is a matrimonial attorney admitted in New York and Florida. He is closing his New York office and moving to Florida. He plans to open a Florida office to provide divorce mediation services for New York clients over the internet, and to serve as what he refers to as a “legal consultant” on issues of New York divorce law. His services as a legal consultant would include negotiating divorce settlements and drafting legal papers to be filed pro se by New York clients in New York courts.          2. The inquirer proposes to advise any New York client that wishes to retain him as a “legal consultant” of the risks associated with not having a full-service attorney representing the client, to make clear that he would not appear on the client’s behalf in court, and to disclose that he would not be maintaining a physical law office in New York.          QUESTIONS:          3. The facts provided by the inquirer raise five related questions:

a. If a mediation is successful, may the lawyer-mediator represent one of the parties in preparing a settlement agreement (or other papers) for the client to file pro se in the divorce proceeding?

b. May a New York lawyer, in connection with a pending or contemplated divorce action, enter a limited scope retainer with a New York client undertaking to provide legal advice, negotiate a settlement, and/or prepare legal documents for the client to file pro se with a New York court?

c. May a lawyer prepare legal papers on behalf of a pro se client for submission to court without disclosing his role in preparing those papers?

d. May a New York lawyer providing limited legal services market himself as a “legal consultant” instead of a lawyer?

e. Must a New York lawyer who resides outside New York but provides legal services to New York clients via the internet maintain a physical office in New York?

         OPINION:          May a lawyer who has successfully handled a divorce mediation subsequently prepare papers for one of the mediation parties to file in a New York court to obtain a judgment of divorce?          4. The inquirer plans to offer mediation services over the internet to divorcing couples. If the parties to the mediation process reach a settlement agreement, the inquirer hopes to be retained by one of the mediation parties to prepare a marital settlement agreement and the other requisite pleadings and documents to be filed in a New York court to obtain a...