83-F-39 - Partnership with Non-Lawyer

FORMAL ETHICS OPINION 83-F-39

Inquiry is made concerning the propriety of a non-practicing lawyer acting
as a divorce mediator and engaging with a non-lawyer in the business of
offering mediation services to the public.

Disciplinary Rule 3-103 of the Code of Professional Responsibility prohibits a lawyer
from forming a partnership with a non-lawyer if any of the activities of the partnership
consists of the practice of law. Other provisions of the Code are applicable as contained
in the following Ethical Considerations:


EC 3-4. A layman who seeks legal services often is not in a
position to judge whether he will receive proper
professional attention. The entrustment of a legal matter
may well involve the confidences, the reputation, the
property, the freedom, or even the life of the client. Proper
protection of members of the public demands that no
person be permitted to act in the confidential and
demanding capacity of a lawyer unless he is subject to the
regulations of the legal profession.


EC 3-5. It is neither necessary nor desirable to attempt the
formulation of a single, specific definition of what
constitutes the practice of law. Functionally, the practice of
law relates to the rendition of services for others that call
for the professional judgment of a lawyer. The essence of
the professional judgment of the lawyer is his educated
ability to relate the general body and philosophy of law to a
specific legal problem of a client; and, thus, the public
interest will be better served if only lawyers are permitted
to act in matters involving professional judgment. Where
this professional judgment is not involved, non-lawyers,
such as court clerks, police officers, abstracters, and many
governmental employees, may engage in occupations that
require a special knowledge of law in certain areas. But the
services of a lawyer are essential in the public interest
whenever the exercise of professional legal judgment is
required.
 
Thus, the threshold question presented in this inquiry is whether or not divorce mediation
constitutes the practice of law.


An analysis of the proposed mediation service is necessary. It appears that the service
offered is to assist individuals in dissolving a marriage whereby the individuals share in
non-adversarial decision making process with an objective of reaching a mutual
agreement in matters involving division of real and personal property, spousal support,
child support, child custody and visitation rights. The mediators do not represent either
party individually and are committed to assisting them in reaching a settlement which is
mutually acceptable. The individuals are informed that the mediators do not and will not
provide legal advice or legal services. They are informed and encouraged to seek
independent legal counsel and to retain an attorney at the onset of mediation. When an
agreement is reached, the terms of the settlement are to be submitted to the attorneys to be
legally drafted and executed.


Divorce mediation as described herein constitutes the practice of law. The divorce
process has always been of special concern to the state and, as such, an integral part of the
administration of justice which is a function of the courts.
Accordingly, it is a violation of Disciplinary Rule 3-103 for a non-practicing lawyer to
engage with a non-lawyer in the business of offering divorce mediation services to the
public.

This 25th day of January , 1983.

ETHICS COMMITTEE:

Jack C. Raulston
F. Evans Harvill
Dissenting: G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD