Attorney as Neutral – Is it time to update Maryland’s rule about attorney mediators drafting settlement agreements?

by | Nov 13, 2017

I recently had the pleasure of attending a seminar about Wisconsin’s update to its rules of practice for attorneys, allowing attorney mediators to draft settlement and other court documents.  The rule went into effect July 1, 2017.

Wisconsin Rule SCR 20:2.4 concerns lawyers as third party neutrals.  Wisconsin defines the role of attorney as third party neutral when the lawyer serves as an arbitrator, mediator, or other neutral capacity to assist two or more non-clients with reaching a resolution of a dispute or other matter that has arisen between them.  This role requires the lawyer to inform unrepresented parties that the attorney is not representing them, and so obtain informed consent of the parties.  The lawyer is entitled to draft, select, complete, modify, or file documents confirming, memorializing, or implementing such resolution, as long as the lawyer maintains his or her neutrality throughout the process and both parties give their informed consent, confirmed in a writing signed by the parties to the mediation. Obtaining informed consent requires the lawyer to explain:

a. The limits of the lawyer’s role.
b. That the lawyer does not represent either party to the mediation.
c. That the lawyer cannot give legal advice or advocate on behalf of either party to the mediation.
d. The desirability of seeking independent legal advice before executing any documents prepared by the lawyer-mediator.
The neutral attorney is required to exercise the same degrees of competence and diligence as if the attorney were representing a client.  In addition to drafting documents, the attorney may file them with the court, but may not appear in court on behalf of any party.  Documents prepared by the neutral attorney must include the following language: “prepared with the assistance of a lawyer acting as mediator.”
Maryland Rule 19-302.4 entitles an attorney to serve as a third party neutral:
(a) An attorney serves as a third-party neutral when the attorney assists two or more persons who are not clients of the attorney 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 attorney to assist the parties to resolve the matter.
(b) An attorney serving as a third-party neutral shall inform unrepresented parties that the attorney is not representing them. When the attorney knows or reasonably should know that a party does not understand the attorney’s role in the matter, the attorney shall explain the difference between the attorney’s role as a third-party neutral and an attorney’s role as one who represents a client.
As can be seen, this Rule is silent about an attorney drafting settlement documents for the parties.  So, Maryland attorney neutrals must look to other sources for guidance.
In 2007, the MSBA’s Committee on Ethics issued an opinion (2007-19) that attorney mediators should not draft settlement agreements for unrepresented parties because the drafting of a legally binding document (as opposed to a non-binding term sheet or memorandum) shifts the attorney mediator’s role from scribe to practicing law.
Maryland Rule 17-103 , which applies to court-ordered mediation, states that the mediator’s role includes “upon request, record[ing] points of agreement expressed and adopted by the parties”. The Committee Note further explains: “Mediators often record points of agreement expressed and adopted by the parties to provide documentation of the results of the mediation. Because a mediator who is not a Maryland lawyer is not authorized to practice law in Maryland and a mediator who is a Maryland lawyer ordinarily would not be authorized to provide legal advice or services to parties in conflict, a mediator should not be authoring agreements regarding matters in litigation for the parties to sign. If the parties are represented by counsel, the mediator should advise them not to sign the document embodying the points of agreement until they have consulted their attorneys. If the parties, whether represented or not, choose to sign the document, a statement should be added that the points of agreement as recorded by the mediator constitute the points of agreement expressed and adopted by the parties.”
Practicing law is defined as “giving legal advice”, “preparing an instrument that affects title to real estate”, “preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court”, and “giving advice about a case that is or may be filed in a court.” Business Occupations & Professions §10-101(h). The practice of law is reserved for licensed attorneys. Business Occupations & Professions §§10-206, 10-601.
The seminar’s speakers questioned whether Wisconsin’s rule allows the neutral attorney mediator to draft documents, such as deeds and qualified domestic relations orders (QDROs), required to implement the agreement.  Additionally, speakers addressed the need for developing neutral language for settlement documents.
As for the purpose of Wisconsin’s rule, the speakers pointed to the need for consistency among attorney mediators and a structure for providing neutral attorney services to self-represented parties in divorce, custody, and other family law matters.  It will be interesting to see how this rule is implemented in Wisconsin and whether this trends to other states.
Should Maryland consider a like rule?  This would require looking at the Rules of Civil Procedure, the Rules of Professional Conduct, and definition of practicing law.  I welcome hearing from attorneys about their thoughts on this rule and whether Maryland should consider the same.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.



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