Does a lawyer who volunteers as a community mediator have to report crime, fraud, or child abuse learned during a mediation session to authorities?

Plain-English summary

The inquiry asked whether an attorney who participates as a mediator in a voluntary mediation program run by the Community Justice Institute must, under the disciplinary rules, breach the confidentiality of that program and disclose material uncovered during a mediation session to law-enforcement authorities or others. The program used community mediators (including lawyers and other professionals) to resolve domestic, neighborhood, consumer, and employment disputes, took pre-complaint referrals from police and the municipal court clerk, and did not disclose a mediator's particular profession to the parties. Its confidentiality policy was that mediators would not volunteer that communications were confidential but, if asked, would say they would attempt to maintain confidentiality. The inquirer was particularly concerned about learning that a participant had committed or intended to commit a crime, a fraud, or child abuse.

The Committee noted that the authorities the inquirer cited (DR 4-101, DR 7-102, and Opinions 227, 247, and 280) all relate to the attorney-client relationship, which did not exist in this situation. Because the attorney-mediator does not participate as an attorney and the parties are not the mediator's clients, there were no professional confidences or privileges to be concerned with.

Turning to whether a mediator who happens to be a member of the bar has an affirmative obligation to disclose such information, the Committee weighed the public-policy interest in protecting the public against lawbreakers. However desirable disclosure might be as policy, it could perceive no logical reason why an attorney-mediator should be required by ethical considerations to disclose information that non-attorney mediators may keep confidential. Holding otherwise would defeat attorney participation in the mediators' program and could give rise to serious equal-protection claims. The Committee therefore answered the inquiry in the negative.

Currency note

This opinion was issued in 1982, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. New Jersey later adopted rules specific to lawyers acting as third-party neutrals, and mediation-confidentiality law has developed since. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer-mediator have to report a crime or abuse learned in mediation?

A: No. The opinion concluded the disciplinary rules did not require an attorney serving as a community mediator to disclose such information.

Q: Why didn't the lawyer's confidentiality duties to clients apply?

A: The opinion held that no attorney-client relationship existed in the mediation, so there were no professional confidences or privileges to protect, and the client-confidentiality rules were inapposite.

Q: Why should an attorney-mediator be treated the same as a non-lawyer mediator?

A: The opinion reasoned that imposing a disclosure duty only on attorney-mediators would defeat their participation in the program and could raise serious equal-protection concerns.

Background and rules framework

The opinion was decided under the confidentiality principles then governing New Jersey lawyers (DR 4-101, DR 7-102), before the 1984 adoption of the Rules of Professional Conduct, but turned on the absence of an attorney-client relationship in the mediation. In current terms the analysis touches RPC 1.6 (confidentiality of information, which attaches to a client relationship) and RPC 2.4 (a lawyer serving as a third-party neutral).

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NJ RPC 1.6 (confidentiality of information)
• MR 2.4 / NJ RPC 2.4 (lawyer serving as a third-party neutral)

Other opinions cited:

• NJ ACPE Opinions 227, 247, 280, and 280 Supplement (attorney-client confidences; held inapposite because no attorney-client relationship existed)

See also

• NJ ACPE Op. 500: Disclosing Personal-Injury Settlement Details to the Media

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp494-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

109 N.J.L.J. 294, April 8, 1982

OPINION 494

Attorney in Mediation Program Obligation to Report Information to Authorities

The inquiry presented is:

Whether an attorney who participates as a mediator in a voluntary mediation program operated under the auspices of the Community Justice Institute is required, under the disciplinary rules, to breach the confidentiality established within that program and to disclose material uncovered during a mediation session to law enforcement authorities or others who may have an interest in such material.

We are advised that the program is intended to provide mediators whose function is to attempt to resolve conflicts and disputes involving, among other things, domestic matters, neighborhood controversies, problems between consumers and businessmen as well as disputes between employer and employees which arise in the community. The program is also structured to receive referrals from the police department and municipal court clerk at the pre-complaint level. Mediators are recruited from the community and include members of the bar and other professionals. Attorneys who participate in the mediation program do not participate as attorneys as such but only as volunteers whose particular profession or experience is not disclosed to the parties involved in the proceedings. The project's policy regarding confidentiality is that while mediators will not volunteer that communications are to be considered confidential, they will advise the parties involved, if asked, that they will attempt to maintain confidentiality. Of particular concern to the inquirer is the situation where in the course of mediation the attorney mediator might learn that a participant has committed or intends to commit a crime, or a fraud or had or is committing child abuse and, if so, whether he would be required to disclose such situation to the authorities.

We are referred by the inquirer to DR 4-101, DR 7-102 and this Committee's Opinions 227, 95 N.J.L.J. 65 (1972); 247, 95 N.J.L.J. 1271 (1972); 280, 97 N.J.L.J. 361 (1974); and 280 Supplement, 97 N.J.L.J. 753 (1974). All the foregoing relate to the attorney-client relationship. That relationship does not exist in the factual situation here presented. Consequently, there are no professional confidences or privileges with which to be concerned.

We are asked whether because a mediator is a member of the bar he has an affirmative obligation to disclose to the appropriate authorities information relating to crime, fraud, child abuse, etc. which comes to him in his capacity as a mediator. We are concerned with public policy considerations relating to the protection of the public against those who violate the law. However desirable it may be as a matter of public policy to have the information disclosed, we can perceive no logical reason why an attorney-mediator should be required by ethical considerations to disclose information which nonattorney mediators may keep confidential. To determine otherwise would defeat attorney participation in the mediators' program and could result in serious equal protection claims. Accordingly, we answer the inquiry in the negative.