Alternative dispute resolution practitioners come from many different kinds of professional backgrounds, including the law. Those ADR practitioners who are attorneys admitted in Massachusetts should be aware of recent changes in the Massachusetts Rules of Professional Conduct which regulate the practice of law. These changes impact attorneys who serve as neutrals in a wide range of dispute resolution processes.
Massachusetts Lawyers Weekly reports this week that these rules have been amended by the addition of Rule 2.4, which governs lawyers who serve as third-party neutrals. Rule 2.4 defines the parameters of that role as follows:
A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
Rule 2.4 requires an attorney who is serving as a neutral to explain to pro se parties that he or she is not representing them as an attorney. If the attorney-neutral has reason to believe that the parties are confused about the role he or she is playing, Rule 2.4 imposes an obligation on the attorney-neutral to clarify for the parties the difference between the role of a neutral on the one hand and that of a client’s advocate on the other so that parties appreciate fully the distinctions between those roles.
(This is sound practice regardless–it is of course critical that parties choosing dispute resolution understand the role the neutral will be playing and to understand that the attorney-neutral cannot provide legal advice. This is true in other professions as well–for example, a mediator who is also a psychologist needs to be sure that prospective clients understand that mediation does not constitute therapy, nor serve as a substitute for it.)
The comments to the new Rule 2.4 also recognize the potential that situations may arise in which an attorney who served as a neutral for parties in one case may subsequently be asked to provide legal representation in the same matter. These conflicts of interest would be governed by Rule 1.12, which prohibits an attorney who has personally served in a dispute as adjudicator, mediator, or arbitrator from subsequently representing parties in the same matter unless they have the permission of all the parties involved.