In its first advisory opinion, the American Bar Association’s Committee on Mediator Ethical Guidance backed a strong view of law firm screening for mediation practice.
The opinion requested guidance on a law firm mediator’s duty to disclose information from a mediation matter that would be responsive to interrogatories faced by the mediator’s partner in another, unrelated case.
The answer, revealed in the commitee’s Question SODR-1-2007 opinion, released Aug. 6, is a definitive do-not-not disclose, absent a law or court order. Specifically, the opinion states, “An attorney-mediator who has received information during the course of a mediation that would be responsive to interrogatories directed to his law firm partner should not disclose this information to the partner absent applicable law requiring that the attorney-mediator answer the interrogatories, unless the parties to the mediation already agreed that disclosure is permissible.”
The opinion is available at http://meetings.abanet.org/webupload/commupload/DR018600/relatedresources/OpinionSODR-1-2007.pdf.
The committee based its opinion on the Model Standards of Conduct for Mediators, a 2005 document prepared by a cross section of the conflict resolution profession and adopted by the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution.
It also cites the Model Rule for the Lawyer as Third-Party Neutral, which was proposed by the CPR-Georgetown Commission on Ethics and Standards in ADR five years ago.
The ABA committee addressed a question raised by a section member in a letter requesting advice. The focus was on mediators’ extended confidentiality obligations. In the course of litigation, an attorney received interrogatories directed to his client, calling for all information about “a certain subject known to the client and its employees and agents, including its attorneys.”
There was a wrinkle for the attorney in answering the seemingly straightforward question: A partner of the attorney was a neutral who recently had mediated a case that–while it didn’t involve the litigation in question–produced information that would affect the response to the interrogatories.
The committee advised that the attorney-mediator should not disclose information acquired in the mediation, and applied the model standards’ Section V.(A), which states, “a mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.”
The full Model Standards of Conduct for Mediators can be found at http://www.abanet.org/dispute/documents/model_standards_conduct_april2007.pdf.
The committee also applied the CPR-Georgetown Commission on Ethics and Standards in ADR’s Model Rule for The Lawyer as Third-Party Neutral (2002), which is a comprehensive proposed model professional conduct rule.
The committee noted that, “[a]s posed,” the inquiry suggests that the attorney-mediator may have already disclosed information to the law firm partner receiving the interrogatory that the attorney-mediator had learned in mediation.
The committee noted that such a disclosure “may raise an issue” under the model standards, as well as the CPR-Georgetown Commission proposed rule.
It cited CPR-Georgetown Rule 4.5.2, comment 4, which states, “the general rule that lawyers may divulge confidences within their law firm to facilitate law practice is not applicable in ADR confidentiality, especially mediation.” The proposed rule is available in its entirety at http://www.cpradr.org/pdfs/CPRGeorge-ModelRule.pdf.
The proposed CPR-Georgetown Commission Rule 4.5.2 states, in part, “A lawyer serving as a third-party neutral shall maintain the confidentiality of all information acquired in the course of serving in that role, unless the third-party neutral is required or permitted by law or agreement of all the parties to disclose or use any otherwise confidential information.”
The committee declined to address how the attorney should respond to the interrogatories, noting that the matter is outside the committee’s jurisdiction.
–By Amrita Chadha, CPR Intern