121319 NYEO, ETH 1178

• Case Date: December 13, 2019
• Court: New York

ETH 1178 Ethics Opinion 1178 New York Ethics Opinion New York State Bar Association Committee on Professional Ethics December 13, 2019          Modifies NY State 678 (1996)          Topic: Lawyer as third-party neutral          Digest: A lawyer-mediator engaged in providing third-party neutral services is subject to Rule 2.4 but not the Rules that govern the representation of clients. As such, the lawyer-mediator is generally free to conduct the mediation in the way the lawyer thinks best, and to charge whatever fee may be appropriate, provided always that the lawyer fully discloses to the parties that the lawyer is acting as a disinterested mediator and not as counsel to any party, including the consequences of that difference. In the event of an agreement, the lawyer-mediator may memorialize the parties’ understanding in a document and may appear as counsel for one party (but not both) in filing a divorce action if the other party gives informed consent confirmed in writing.          Rules: 1.5, 1.6, 1.7, 1.12, 2.4, 5.7          FACTS          1. The inquiring lawyer intends to become a mediator and plans to focus on mediating cases involving parties who would otherwise seek a contested divorce. The lawyer-mediator anticipates that the parties may find that meeting individually to discuss the issues that need to be resolved in order to submit their agreement to the court would be beneficial given the antagonistic position between them.          2. The lawyer-mediator intends to charge an upfront, flat rate for the mediation services. The goal of those services is for the parties to resolve all of the issues necessary for the parties to be in a position to submit an uncontested divorce package. In the event that the parties discontinue using the lawyer as a mediator before all of the issues are resolved, the contract will provide that the parties will pay the lawyer-mediator an hourly rate for the services performed, charged against the upfront payment with any unused amount returned to the parties.          QUESTIONS          3. In connection with setting up a mediation practice, the inquiring lawyer poses several questions:

(a) May the lawyer-mediator meet with the parties individually to inform them of the various issues that need to be resolved in order to have a divorce granted in New York?

(b) May the lawyer-mediator enter into a contract with the parties to provide mediation services? If so, may the contract provide for the payment of a flat rate by the parties in the event resolution is reached that results in an uncontested divorce packet but otherwise provides for the payment by the parties on an hourly basis if the parties discontinue the lawyer-mediator’s

...