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MEDIATION: Massachusetts' Top Court Will Monitor Ex-Lawyer's Mediator Practices (June 7).

Does mediation constitute or involve the practice of law and therefore requires mediators to be lawyers?

At least one state’s highest court says no.

But that same Massachusetts top court will still regulate ex-lawyers—the disbarred, suspended, and disciplined—who want to act as neutrals.

In a decision Tuesday, In re Bott, 2012 WL 1970456,Docket No. SJC-10935 (Mass. June 5, 2012), the Massachusetts Supreme Judicial Court held that mediation as a general matter does not constitute the practice of law.
The decision also holds that even an attorney who is no longer practicing may be prohibited, in some circumstances, from acting as a mediator.

The petitioner, Anthony Raoul Bott, of Orleans, Mass., resigned from the bar after a Court disciplinary investigation in 2005 for, among other things, having converted client money and making misrepresentations. He pled guilty to fraud and larceny charges, and, according to the opinion and court records, was sentenced to a period of incarceration, and barred from legal practice.

In 2009, in order to expand his employment opportunities, Bott completed a mediation training program, and filed a petition for relief in a county court in 2010 requesting permission to serve as a mediator. The case was reported to the full Supreme Judicial Court for consideration.
It appeared to be a simple extension of the disciplinary matter.  But mediation practitioners had deep concerns about the potential effect on their profession.  Specifically, they suggested in an amicus brief filed in the case that if Bott was practicing law by being a mediator, and that he needed to be a lawyer in order to mediate, then the mediation field could be in deep trouble because many Massachusetts mediators today are not lawyers.

Members of the Massachusetts mediation community—a consortium of eight organizations--submitted an  amicus brief emphasizing the role nonlawyers had played in mediation, and the devastating consequences that might result had the Court ruled mediation was the practice of law. The Court opinion cites the brief--which did not take a side in the case--in noting that nearly 60% of the state’s mediators are not attorneys.

The amicus brief states that without nonlawyer mediators, some “court-approved programs . . . would be unable to continue to effectively serve the courts and assist them in their mission to ‘increase access to court-connected dispute resolution services, to ensure that these services meet standards of quality and procedural fairness, and to foster innovation in the delivery of these services,'” citing Supreme Judical Court Rule 1:18, SJC Uniform Rules on Dispute Resolution Rule 1(a).

Consequently, the amicus brief warned, “A ruling that prevented nonlawyers from continuing to do [mediation work] would represent a significant change to the way the Court has customarily treated mediation and mediators, and would have a dramatically negative impact on the Commonwealth's vibrant mediation community.”

The decision didn’t go that far.  Justice Fernande R.V. Duffly, writing for the Court, first notes that defining the practice of law isn’t easy.  “’[W]hat constitutes the practice of law’ is a subject that lies ‘within the exclusive power of the courts to determine,’” she notes, citing, Real Estate Bar Ass’n for Mass. V. National Real Estate Info. Servs., 946 N.E.2d 665 (Mass. 2011). 

At the same time, the opinion continues, “[w]hether a particular activity constitutes the practice of law ‘must be decided upon its own particular facts.  . . . ’” Id.
Duffly notes that many activities generally associated with legal practice also are performed by non-lawyers, while a person holding a law degree does not automatically attain the qualification to serve as a mediator. In fact, a mediator is not allowed to “provide legal advice, counseling, or other professional services in connection with the dispute resolution process,” even if the mediator is also a lawyer. Rule (9)(c)(iv) of the Uniform Rules on Dispute Resolution, 427 Mass. 1316 (1999). 

Therefore, because “for an activity to be considered the ‘practice of law’ such that a nonlawyer cannot perform it without committing the unauthorized practice of law, the activity itself must generally fall ‘wholly within’ the practice of law,” again quoting Real Estate Bar Ass’n. 

The Court held that “as a general proposition, a person does not engage in the practice of law when acting as a mediator in a manner consistent with the Uniform Rules.”

But the Court also expresses a significant reservation regarding its holding. While equating the term “practice of law” with “legal work,” thus rejecting the disciplinary authority counsel’s proposal--that S.J.C. Rule 4:01, § 17(7), which precludes a disbarred or suspended lawyer, or one who has resigned while the subject of disciplinary investigation, from “engag[ing] in legal or paralegal work,” applies to mediation in general--the Supreme Judicial Court suggests that “there may be circumstances where work that does not constitute the practice of law when engaged in by nonlawyers may qualify as legal work that a disbarred or suspended lawyer is precluded from performing.”

Specifically, the Court notes that an attorney violates a judgment of disbarment by applying his or her legal knowledge and experience to address the interests of individual clients. After a brief survey of existing Massachusetts case laws, the Court proposes a four-factor test to determine “whether mediation or other activities that do not constitute the practice of law when performed by nonlawyers may, in the context of bar discipline cases, nevertheless constitute legal work when performed by a lawyer”:

(1) whether the type of work is customarily performed by lawyers as part of their legal practice;
(2) whether the work was performed by the lawyer prior to suspension, disbarment, or resignation for misconduct;

(3) whether, following suspension, disbarment, or resignation for misconduct, the lawyer has performed or seeks leave to perform the work in the same office or community, or for other lawyers; and

(4) whether the work as performed by the lawyer invokes the lawyer's professional judgment in applying legal principles to address the individual needs of clients.

The Court held that “an attorney who has resigned while the subject of disciplinary investigation, or who has been disbarred or suspended from the practice of law, may be prohibited, in some circumstances, from acting as a mediator.”

Finding that many attorneys offer mediation services, and that many mediators draw on their legal knowledge and experience when approaching the cases, the Court held that mediation may constitute legal work in the context of bar discipline cases.
The case was then remanded to the county court to determine whether and under what conditions petitioner Bott may serve as a mediator consistent with the concerns articulated in its opinion.

The Bott amici appear relieved. The opinion “correctly distinguishes mediation from the practice of law,” says David A. Hoffman, a veteran mediator, founding member of the Boston Law Collaborative, an ADR provider and consulting firm,  and a contributor to the amicus brief.  “What the Court asserts, however, is that the Courts have the responsibility of monitoring lawyers and their behavior--not mediators. The rules prohibit, for example, any misrepresentation by a lawyer, even if it's unrelated to law practice.  Thus, the Court's decision is really about its supervision of a disbarred lawyer and setting appropriate limitations on [the] activities--not about regulating the practice of mediation. ”
The amicus brief is posted on the Supreme Judicial Court site, here.

While the Court ruled that further county court investigation is necessary as to whether Bott’s mediation work would be appropriate, it ended its opinion with a footnote that contained a new temporary Court rule to address future situations:

Pending the promulgation of any new rule, an attorney who has resigned from the practice of law while the subject of disciplinary investigation under S.J.C. Rule 4:01, § 15, as appearing in 425 Mass. 1319 (1997), or who has been disbarred or suspended from the practice of law under S.J.C. Rule 4:01, § 8, as appearing in 453 Mass. 1310 (2009), or who has been placed on disability inactive status pursuant to S.J.C. Rule 4:01, § 13, as amended, 453 Mass. 1307 (2009), and who seeks to engage in employment as a mediator, may, in accordance with the time frames of such requests set forth in S.J.C. Rule 4:01, § 18 (3), as appearing in 453 Mass. 1315 (2009), seek leave from the court to engage in such employment.
So it is back to county court for another inquiry for Anthony Bott.  He resigned from the Massachusetts bar in 2005, after the state’s top court cited 11 ethics violations.  For details, see

--Congsi Wu, CPR Intern