Can a family-law attorney serve both sides as a neutral 'settlement lawyer' or intermediary to help pro se parties reach a resolution?

Plain-English summary

The inquiring attorney was trained in "collaborative law" with a family-law focus and had been a trained mediator since 1991. Observing that many family-law parties proceed pro se because hiring a lawyer feels unkind or too expensive, she wanted to offer mediator-like assistance as a "settlement lawyer," serving as a source of authoritative guidance on the law and practical considerations to help the parties reach a resolution and locate other professionals. She submitted a proposed attorney-client contract for the committee's review.

The committee said an attorney acting as a true intermediary does not appear to violate RPC 2.2, provided she complies with that rule's specific requirements: she must make clear to both parties that she is acting solely as an intermediary, advise them that there is no attorney-client privilege separating them, comply strictly with RPC 2.2, and, if the intermediation is not successful, refrain from representing either party in any subsequent proceedings. It said she should be extremely careful in that role and should also consider RPC 1.7 on conflicts of interest.

The committee noted that RPC 2.2 had been recommended for removal by the Board of Governors, with the recommendation presented to the Washington Supreme Court in October 2004; if RPC 2.2 were deleted, as it had been from the ABA Model Rules, the attorney would instead rely on RPC 1.7 and its comments (the committee pointed to ABA Model Rule Comments [29]–[33]). On the label, the committee said using any term to describe a lawyer's services or fields of practice is a professional designation that must comply with RPC 7.1 through 7.5. Finally, the committee declined to edit the proposed contract, noted concern about its adequacy as written, and pointed to the rules on disclosure and informed consent.

Currency note

This opinion was issued in 2004, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. As the opinion itself notes, RPC 2.2 (the intermediary rule) had been recommended for deletion and was later removed, mirroring its deletion from the ABA Model Rules, so the conflict analysis now runs through RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee said the intermediary role was permissible only on strict compliance with RPC 2.2: dual disclosure that the lawyer serves only as an intermediary, a warning that no attorney-client privilege separates the parties, and a bar on representing either party in later proceedings if the effort fails. The committee paired that with RPC 1.7's conflict analysis and signaled that, with RPC 2.2 slated for deletion, RPC 1.7 and its comments would carry the analysis going forward. It treated the "settlement lawyer" label as a professional designation subject to RPC 7.1 through 7.5, and it declined to bless the proposed contract.

Common questions

Q: Can a lawyer act as a neutral "settlement lawyer" for both sides of a family-law dispute?

A: The committee said a lawyer acting as a true intermediary does not appear to violate RPC 2.2 if she strictly complies with the rule, including disclosing that she acts only as an intermediary and that no attorney-client privilege separates the parties.

Q: What happens if the intermediation does not work out?

A: The committee said that under RPC 2.2 the lawyer must refrain from representing either party in any subsequent proceedings.

Q: Does the term "settlement lawyer" itself raise an issue?

A: The committee said using any term to describe a lawyer's services or fields of practice is a professional designation that must comply with RPC 7.1 through 7.5.

Q: Did the committee approve the proposed client contract?

A: No. The committee declined to edit the proposed legal documents, expressed concern about the contract's adequacy as written, and recommended review of the relevant rules, including those on disclosure and informed consent.

Background and rules framework

The opinion interprets former RPC 2.2 (former Model Rule 2.2, lawyer as intermediary), which set conditions for representing multiple clients seeking a common resolution, and RPC 1.7 (Model Rule 1.7, conflicts of interest with current clients), which the committee identified as the rule that would govern after RPC 2.2's deletion. It also applies RPC 7.1 through 7.5 (Model Rules 7.1–7.5, communications and firm designations) to the "settlement lawyer" label. The analysis turns on whether the lawyer maintains a true intermediary posture and gives the disclosures the rule requires.

Citations and references

Rules of Professional Conduct:

• Former Model Rule 2.2 / Washington RPC 2.2 (lawyer as intermediary; intermediary conditions and disclosures)
• Model Rule 1.7 / Washington RPC 1.7 (conflicts of interest; the rule governing after RPC 2.2's deletion)
• Model Rules 7.1–7.5 / Washington RPC 7.1–7.5 (communications and professional designations)

Other authority:

• ABA Model Rule 1.7, Comments [29]–[33] (common representation; recommended for adoption in Washington)

See also

• WSBA Ethics Op. 1132: Lawyer-Intermediary After Mediation
• WSBA Ethics Op. 1470: Arbitrator Conflict in a Pending Case
• WSBA Ethics Op. 1422: Mediation-Service Partnership With a Nonlawyer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1323

Original opinion text

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

Advisory Opinion: 2078
Year Issued: 2004
RPC(s): RPC 1.7, 2.2, 7.1-7.5
Subject: Ethical considerations regarding the services of a “settlement lawyer”

FACTS The inquiring attorney is trained in "collaborative law" with a primary focus on family law issues. She has been a trained mediator since 1991. In her experience, many people in family law cases proceed pro se because they believe it is either unkind or too expensive to hire an attorney.

The inquirer would like to offer mediator-like assistance to these clients as a "settlement lawyer." As a settlement lawyer she would serve as a "respected source of authoritative wisdom on law and other relevant practical considerations" in helping the parties to reach a constructive resolution. She would also assist the parties in locating other professionals to assist them.

The inquirer has included a proposed attorney-client contract for settlement lawyer services for the Committee`s consideration.

RESPONSE 1. An attorney acting as a true intermediary, does not appear to violate RPC 2.2 provided the attorney complies with the specific requirements of the rule. Under RPC 2.2, the attorney must make it clear to both parties that she is acting solely as an intermediary, advise them that there is no attorney-client privilege separating the parties, comply strictly with RPC 2.2, and, if the intermediation is not successful, refrain from representing either party in any subsequent proceedings. The attorney should be extremely careful when undertaking such a role. She should also consider RPC 1.7, governing Conflict of Interest.

However, RPC 2.2 has been recommended for removal by the Board of Governors and the recommendation was presented to the Washington State Supreme Court the week of October 11, 2004. If RPC 2.2 is deleted, as it has been from the ABA Model Rules, the attorney will instead rely upon RPC 1.7 and the comments thereto. Comments [29] – [33] of the ABA Model Rules are particularly illuminating and have been recommended for adoption in Washington.

2. Your inquiry contains repeated references to the term "Settlement Lawyer." The Committee is uncertain if your inquiry requests an opinion whether that term violates any RPCs. The use of any term to describe a lawyer`s services or fields of practice constitutes a professional designation and must comply with RPCs 7.1 through 7.5.

3. The Committee declines the invitation to edit proposed legal documents, but has concern with the adequacy of the contract as written and recommends review of relevant rules including the RPCs regarding disclosure and informed consent.