LEO: Divorce Mediation/Domestic LE Op. 519
Divorce Mediation/Domestic Relations/Family Law.
April 28, 1983
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
Committee Opinion April 28, 1983
See also LE Op. 1368.