ETH 17-02
No. 17-02
Nebraska Ethics Advisory Opinions
Nebraska Ethics Advisory Opinion for Lawyers
September 11, 2017
Nebraska
Ethics Advisory Opinion for Lawyers No. 13-02 is modified and
amended. A Nebraska Licensed Attorney, acting as a private
mediator but who is not certified under the Nebraska
Parenting Act, would NOT be per se prohibited from mediating
custody, parenting time, parenting functions, or support
matters under Chapter 30 and 42 because that Attorney would
therefore not be a mediator “involved in
proceedings” if a proceeding has not been
filed.
QUESTION
PRESENTED/ISSUE
A
request has been made by a Nebraska attorney to amend or
completely withdraw Nebraska Ethics Advisory Opinion for
Lawyers No. 13-02. As presently written, Opinion No. 13-02
concludes that a Nebraska Lawyer who is not licensed as a
mediator under the Nebraska Parenting Act (Nebraska Revised
Statutes §43-2921), should not mediate in cases
involving proceedings or modifications where parenting
functions are at issue (Nebraska Revised Statutes, Chapter 42
– Husband and Wife, and §§43-1401-1418
Infants and Juveniles).
ANALYSIS
The
Opinion, as presently published, should not be withdrawn, but
rather amended, to provide further clarification and guidance
to the Requesting Attorney. The Analysis section of the
opinion, on page 2990 states “The Requesting Attorney
is subject to the provisions of the Nebraska Parenting Act if
he wants to mediate disputes which touch, in any
manner, subjects addressed by Nebraska Revised Statutes
Chapter 42 (Husband and Wife) and §§43-1401-1418.
(emphasis added). The Opinion is too broad as it pertains to
the language, “which touch, in any
manner.” This language should be stricken from the
Opinion. Given this present language, the Requesting
Attorney, under the Parenting Act, would not be permitted to
mediate issues such a property division, determination of
child support, or alimony while at the same time assisting
parties who are developing a parenting plan when a proceeding
or modification has been filed. For example,
performing a child support calculation, would arguably,
“touch” on the issue of custody as part of the
calculation requires information on whether custody will be
basic, joint or split custody. As another example, a private
Nebraska licensed attorney (who is a mediator) discussing
whether husband or wife is permitted to claim the minor
child(ren) for taxes in a child support calculation would
touch in any manner subjects under Chapter 42.
The
Parenting Act applies to proceedings or modifications
filed on or after January 1, 2008, in which
“parenting functions” for a child are at issue
under Chapters 30 and 42. Neb. Rev. Stat. §43-2924.
Parenting functions are defined in Neb. Rev. Stat.
43-2922(17). The author understands the examples above
probably would not fall directly in the categories identified
in 43-2922(17), however, the “not limited to”
language of 43-2922(17) could be argued to say paying child
support is a “parenting function.” Given the
present broadness of the Opinion, the Requesting Attorney
would not able to mediate financial matters involving
children if a case has been filed. Thus, the
“touch in any manner” should be
stricken. If the language was stricken, the parties would be
permitted to have the Requesting Attorney mediate some
matters under Chapter 42 and 30 regardless of whether or
proceeding or modification was on file.
Further,
the Requesting Attorney, as a private mediator, would NOT be
prohibited from mediating custody, parenting time, parenting
functions, or support matters under Chapter 30 and 42 if a
proceeding has not been filed. The Requesting Attorney would
not be a mediator “involved in
proceedings” if an action or modification has not
been filed. This would be similar to parties selecting to
have a priest, family member, counselor or the parties
themselves develop a parenting plan before litigation because
ultimately, the Court will review the proposed parenting plan
to determine if the plan is in the best interests of the
minor child(ren). The aforementioned is true regardless of
whether the Requesting Attorney is a per se “Parenting
Act Mediator” who has completed the training
requirements under the Parenting Act. The distinction between
whether or proceeding has been filed or not filed may be
viewed unfavorably, however, given the manner section 43-2924
is set forth...
