Can a lawyer who serves as a divorce mediator later represent one of the parties in the uncontested divorce, and join a mediation center's approved list?

Plain-English summary

The committee addressed the role of an attorney involved in divorce mediation. As in its companion opinion, it concluded that rendering legal advice to both parties is usually improper, even if both pay the attorney, because it can rarely be done non-partisanly; but providing only "legal information," where the parties understand the distinction from "legal advice" and consent, may be appropriate in uncomplicated, uncontested divorces involving a short marriage, few assets, and no children. The committee advised lawyers to use great caution before agreeing to provide legal information or advice to both parties.

The committee further concluded that, so long as there is no contest over the property settlement agreement, it would not be ethically improper for the attorney to represent one of the parties in a subsequent uncontested divorce proceeding, suggesting that lawyers use caution, make full disclosure before accepting the employment, and obtain both parties' informed consent to avoid a conflict or its appearance. It also concluded that allowing the attorney's name to be added to the mediation center's list of approved attorneys is ethically permissible.

Currency note

This opinion was issued in 1983, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that this opinion permitted a lawyer serving as a mediator to represent one of the parties in a subsequent uncontested divorce, but that such subsequent representation is not permitted by Rule 2.10(e). 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 Treat this page as historical context, not current guidance.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: Could a divorce mediator later represent one of the parties in the divorce?

A: Under this 1983 opinion, yes, if there was no property-settlement contest and after disclosure and consent; the committee note records that Rule 2.10(e) no longer permits that subsequent representation.

Q: Could the lawyer advise both spouses during mediation?

A: The committee allowed only neutral "legal information," not "legal advice," and only where both parties understood the distinction and consented, in simple uncontested cases.

Q: Could the lawyer join a mediation center's approved list?

A: Yes. The committee concluded it was ethically permissible for the attorney to allow his name to be added to the mediation center's list of approved attorneys.

Background and rules framework

The opinion analyzes a lawyer's roles in divorce mediation under the former Code, distinguishing neutral information from partisan advice and addressing later representation of a party. The committee note maps the subsequent-representation question onto current Virginia Rule 2.10(e), which now bars it, with the third-party-neutral role corresponding to ABA Model Rule 2.4 and conflict principles from Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 2.10(e) (lawyer as mediator; subsequent representation barred) (cited in the committee note)
• ABA Model Rule 2.4 / Model Rule 1.7 (third-party neutral; conflicts)

See also

• VA LEO 519: A Lawyer Working With a Divorce Mediation Service
• VA LEO 1826: An Attorney-Mediator's Conflicts and Referrals
• VA LEO 847: A Part-Time Hearing Officer Before the Same Agency

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0511.pdf

Original opinion text

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

LEGAL ETHICS OPINION 511

DIVORCE MEDIATION/DOMESTIC RELATIONS/FAMILY LAW.

Concerning the role of an attorney who is involved in the divorce mediation process, in many cases it would be improper for an attorney to attempt to render legal advice to both parties as to their legal rights even if the attorney is paid by both parties since often it would be virtually impossible to give such advise in a completely non-partisan way. However, where an attorney has undertaken to provide "legal information" only, as opposed to "legal advice," the parties understand the distinction between "legal information" and "legal advice" and have given their informed consent for an attorney so to act, it may be appropriate in certain circumstances for an attorney to provide legal information to both parties, particularly, in uncomplicated and straightforward situations where the parties are contemplating getting a non-contested divorce and the marriage has been of short duration with little assets and no children involved. Regardless of the situation, however, attorneys should be advised to use great caution before agreeing to provide legal information or advice to both parties, and should attorneys agree to do so, they should be extremely careful to be as non-partisan as possible.

Moreover, so long as there is no contest concerning the property settlement agreement between the parties, it would not be ethically improper for an attorney to represent one of the parties in a subsequent uncontested divorce proceeding, although the Committee suggests that attorneys use caution in this area, make full disclosure to the parties prior to accepting such employment, receive the informed consent of both in order to avoid possible conflict of interest or the appearance thereof.

It is ethically permissible for an attorney to allow his name to be added to the mediation center's list of approved attorneys.

Committee Opinion
April 28, 1983

Legal Ethics Committee Notes. – This opinion permitted a lawyer serving as a mediator to represent one of the parties in a subsequent uncontested divorce proceeding. Such subsequent representation is not permitted by Rule 2.10(e).