In Kentucky, may a lawyer who practices domestic-relations law serve as a mediator in voluntary or court-annexed divorce mediation?

Plain-English summary

Building on KBA E-335, which said a Kentucky lawyer may participate in divorce mediation as a mediator or as a lawyer for a party, the Committee was asked whether a lawyer who practices domestic-relations or divorce cases can serve as a mediator or is automatically disqualified. It answered "No," there is no per se rule of disqualification.

The opinion started from the view that it would be highly desirable for domestic-relations mediators to be trained in the law and experienced in the field. While a stricter rule might apply to Trial Commissioners and part-time prosecutors, the Committee saw no reason a private-practice lawyer should be precluded from serving as a mediator from time to time. It then emphasized the mediator's duty to be impartial (citing the ABA and SPIDR standards): if the lawyer-mediator has represented one of the parties in the past, impartiality may be difficult, and impartiality is questionable if a party is a present client of the lawyer or the firm, or in any professional, business, or personal relationship with the lawyer. Drawing on the ABA, SPIDR, and AAA standards and comparing Rules 1.12 (former judge or arbitrator) and 2.2 (lawyer as mediator), the opinion concluded that a person serving in that role should avoid relationships that create an appearance of influence, and, absent consent of all affected parties, the mediator should not represent any party in the same or a substantially related matter.

Currency note

This opinion was issued in 1993, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130); the Kentucky Bar Association notes that Rule 2.2, on which this opinion relies, was deleted and replaced by Rule 2.4 ("Lawyer serving as third-party neutral"). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a domestic-relations lawyer barred from serving as a divorce mediator?

A: No. The opinion concluded there is no per se rule of disqualification and that legal training and domestic-relations experience are desirable in a mediator.

Q: What limits apply to a lawyer acting as mediator?

A: The opinion held the mediator must be impartial; impartiality is doubtful where a party is a present client, a past client, or in another relationship with the lawyer, and such relationships that create an appearance of influence should be avoided.

Q: Can the lawyer-mediator later represent one of the parties?

A: The opinion concluded that, absent the consent of all affected parties, the mediator should not represent any party in the same or a substantially related matter.

Background and rules framework

The opinion interprets KRPC 2.2 (lawyer as intermediary/mediator; Model Rule 2.2, since deleted and replaced by Rule 2.4) and compares KRPC 1.12 (former judge, arbitrator, or third-party neutral; Model Rule 1.12). It reads these against external mediation standards (ABA, SPIDR, and AAA) governing impartiality and disclosure of interests.

Citations and references

Rules of Professional Conduct:

• MR 2.2 / KRPC 2.2 (lawyer as mediator; later replaced by Rule 2.4)
• MR 1.12 / KRPC 1.12 (former judge, arbitrator, or third-party neutral)

Other opinions cited:

• KBA E-335 (1989): a Kentucky lawyer may participate in divorce mediation

Other authorities:

• ABA Standards of Practice for Divorce Mediation (1984), Standard III
• SPIDR Ethical Standards (1986), Standards 1 and 4
• AAA Code of Ethics (1977), Canons I D and II
• Dzienkowski, Lawyers as Intermediaries, 1992 U. Ill. L. Rev. 741 (1993)

See also

• NY State Bar Op. 878: Lawyers Serving as Mediators
• NY State Bar Op. 999: Marital Mediator Referrals to a Spouse
• KBA Ethics Op. E-377: Mediation Corporation

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-361.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-361
Issued: July 1993

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky
Supreme Court has adopted various amendments, and made substantial revisions
in 2009. For example, this opinion refers to Rule 2.2, which was deleted. It was
replaced by Rule 2.4, entitled "Lawyer serving as third-party neutral." Lawyers
should consult the current version of the rules and comments, SCR 3.130 (available
at http://www.kybar.org), before relying on this opinion.

Question:

Are lawyers in private practice disqualified from serving as mediators in
voluntary or court-annexed divorce mediation?

Answer:

No.

References:

Rule of Professional Conduct 2.2; KBA E-335 (1989); ABA Standards of
Practice for Divorce Mediation (1984), Standard III [ABA Standards];
Ethical Standards of the Society of Professionals in Dispute Resolution
(1986), Standards 1 and 4 [SPIDR Standards]; Code of Ethics of the
American Arbitration Association (1977) Canon I D and Canon II [AAA
Standards]; J. Dzienkowski, Lawyers as Intermediaries, 1992 U. Ill.
L.Rev. 741-817 (1993).
OPINION

In KBA E-335 the Committee opined that a Kentucky lawyer may participate in
"divorce mediation," either as a mediator or as a lawyer for a party who is engaged in
mediation. The question presented is whether a lawyer who practices domestic
relations/divorce cases can serve as a mediator, or whether there is some automatic
disqualification.
The Committee is of the view that there is no per se rule of disqualification.
Indeed, we start with the assumption that it would be highly desirable for domestic
relations mediators to be trained in the law and be experienced in the field of domestic
relations law. While a stricter rule may apply for Trial Commissioners and part-time
prosecutors, we see no reason why a lawyer in private practice should be precluded from
serving as a mediator from time to time.
On the other hand, a mediator has a duty to be impartial. ABA Standard III;
SPIDR Standard 1. If the lawyer mediator has represented one of the parties in the past it
may be difficult for the mediator to be impartial. ABA Standard III A. Certainly, one
might question the impartiality of the mediator if one of the parties is a present client of

the lawyer or of his or her firm [or for that matter, in any professional, business or
personal relationship with a party]. ABA Standard III A; AAA Canon II (disclosure of
interests). A person who serves in such a role should avoid entering into any such
relationship if this might create the appearance that the intermediary had been influenced
by the anticipation or expectation of that relationship or interest. Cf. ABA Standard III A;
AAA Canon I D. Compare Rules 1.12 (former judge or arbitrator) and 2.2 (lawyer as
mediator). In the absence of consent by all affected parties, the mediator should not
represent any party in the same or a substantially related matter.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.