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Disciplined lawyers’ right to mediate

The Massachusetts Supreme Judicial Court has outlined instances when a former lawyer may not be able to practice mediation.

In the Matter of Bott, decided 5 June 2012, the Court looked at the case of an attorney who has resigned while the subject of disciplinary investigation’s petition or who has been disbarred or suspended from the practice of law may not have the right to act as a mediator.

Adjunct Professor of Law, Ethics Counsel, Georgetown University Law Centre Michael Frisch reported the below extract of the Court’s reasoning on the Legal Profession Blog.

“We address whether an attorney (petitioner) whose resignation from the practice of law was accepted as a disciplinary sanction may now work, either for pay or on a volunteer basis, as a mediator.

“We conclude that, although mediation does not in all circumstances constitute the practice of law, an attorney who has resigned from the practice of law while the subject of disciplinary investigation under S.J.C. Rule 4:01, section 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, section 8, as appearing in 453 Mass. 1310 (2009), may be prohibited from serving as a mediator when to do so would be perceived by the public as an extension of the attorney's practice of law, or when the conduct of the mediation is so closely related to the practice of law as to constitute legal work within the meaning of S.J.C. Rule 4:01, section 17(7), as amended, 453 Mass. 1307 (2009).

“We remand to the county court for a determination whether it is appropriate, in light of our opinion, that the petitioner engage in mediation, and, if so, to impose any conditions necessary to protect his mediation clients and to ensure the integrity of the legal profession.”

Further extracts from the decision are available at
lawprofessors.typepad.com/legal_profession/2012/06/may-suspended-attorney-serve-as-mediator.html

 

Last updated on the 3rd June 2015