Can a lawyer working with a divorce mediation service give legal help to both spouses, and can the service pay the lawyer?

Plain-English summary

The committee addressed the relationship between an attorney and a divorce mediation service. It concluded that in many cases it would be improper for an attorney to render legal advice to both parties, because it would often be virtually impossible to give such advice in a completely non-partisan way. Where, however, the attorney undertakes to provide "legal information" only, as distinct from "legal advice," the parties understand the distinction, and they give informed consent, it may be appropriate in certain circumstances for the attorney to provide legal information to both parties, particularly in uncomplicated, uncontested divorces involving a short marriage, few assets, and no children. The opinion advises lawyers to use great caution before agreeing to provide legal information or advice to both parties, and to be as non-partisan as possible if they do.

The committee added that being paid by the mediation service for advising the parties is not a per se ethical violation, but that entering such an employment agreement might in many situations violate Canon 5 (which requires independent professional judgment) and DR 5-107 (which requires avoiding influence by others than the client). It also noted that Canon 9, on avoiding even the appearance of professional impropriety, might be violated by the service paying the attorney even where Canon 5 is not. It cited DR 5-105, DR 5-107, EC 5-1, EC 5-21, EC 5-22, EC 5-23, and DR 9-101.

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 current Rule 2.11 deals with lawyers acting as mediators. 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 Treat this page as historical context, not current guidance.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: Can a lawyer in a divorce mediation advise both spouses?

A: Under this 1983 opinion, rendering legal advice to both parties is usually improper because it cannot be done in a completely non-partisan way.

Q: Is there any room to help both parties?

A: The committee allowed providing "legal information" only, as distinct from "legal advice," where both parties understand the distinction and consent, particularly in simple uncontested divorces with a short marriage, few assets, and no children.

Q: Can the mediation service pay the lawyer?

A: Not a per se violation, the committee said, but it cautioned that being paid by the service might implicate Canon 5's independent-judgment requirement, DR 5-107, and Canon 9's appearance-of-impropriety concern.

Background and rules framework

The opinion analyzes a lawyer's role in divorce mediation under the former Code's multiple-client conflict rule DR 5-105, the third-party-influence rule DR 5-107, and the appearance provisions of Canon 9, distinguishing neutral "legal information" from partisan "legal advice." The committee note maps the question onto current Virginia Rule 2.11 on lawyers acting as mediators, corresponding to ABA Model Rule 2.4 on a lawyer serving as a third-party neutral, with conflict principles from Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• DR 5-105 (conflicts; multiple clients) (former Code)
• DR 5-107 (avoiding influence by a third party who pays) (former Code)
• DR 9-101 / Canon 9 (appearance of impropriety) (former Code)
• EC 5-1, EC 5-21, EC 5-22, EC 5-23 (former Code; independent professional judgment)
• Virginia Rule 2.11 (lawyer acting as mediator) (cited in the committee note)
• ABA Model Rule 2.4 / Model Rule 1.7 (third-party neutral; conflicts)

See also

• 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/0519.pdf

Original opinion text

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

LEGAL ETHICS OPINION 519

DIVORCE MEDIATION/DOMESTIC RELATIONS/ FAMILY LAW.

Concerning the relationship between an attorney and a mediation service, in many cases it would be improper for an attorney to render legal advice to both parties since often it would be virtually impossible to give such advice 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 the 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.

If the attorneys are paid by the mediation service for their advice to the parties, it would not be a per se ethical violation, but the attorneys by entering into such an employment agreement might in many situations be violating the provisions of Canon 5, which require an attorney to exercise independent professional judgment on behalf of his client, and the provisions of DR:5-107 which require an attorney to avoid the influence by others than the client. Also, the provisions of Canon 9 state that a lawyer should avoid even the appearance of professional impropriety, and if the attorneys are paid by the mediation service for their advice to the parties, such an arrangement might be deemed to violate Canon 9 even if the provisions of Canon 5 are not violated. [ DR:5-105, DR:5-107, EC:5-1, EC:5-21, EC:5-22 and EC:5-23, DR:9-101, Virginia Code of Professional Responsibility]

Committee Opinion
April 28, 1983

Legal Ethics Committee Notes. – rule 2.11 deals with lawyers acting as mediators.