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.
Jack C. Raulston
F. Evans Harvill
Dissenting: G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD