Attorney Mediator Ethical Standards

For S.C. Supreme Court rules governing court appointed neutrals generally, click HERE

For S.C. Supreme Court Standards of Conduct for Mediators, click HERE

Ethics Advisory Opinion 94-10:

Upon the request of a member of the South Carolina Bar, the Ethics Advisory Committee has rendered this opinion on the ethical propriety of the inquirer’s contemplated conduct. This Committee has no disciplinary authority. Lawyer discipline is administered solely by the South Carolina Supreme Court through its Commission on Lawyer Conduct.

Full Text

Lawyer A wishes to notify other lawyers by letter of Lawyer A’s availability to serve as a mediator in civil litigation. The letter would indicate areas of practice in which Lawyer A has experience and would mention Lawyer A’s training as a mediator. The letter would offer the services of Lawyer A as a mediator without reference to any specific pending cases.

Questions:
Is a letter of the type described prohibited under Rule 7.3?

If not, must the letter contain the information required by Rule 7.3, even though it would not be sent to “prospective clients known to be in need of legal services in a particular matter?”

Summary:
Because a letter to other lawyers offering mediation services is not a solicitation to provide legal services to a prospective client, Rule 7.3 does not apply. However, the lawyer must be careful that any communication is not false or misleading in violation of Rule 7.1 and that it does not violate Rule 7.4 regarding claims of expertise or specialization.

Opinion:
Mediation is not a legal service, and admission to the Bar is not a prerequisite to service as a mediator. The principle inquiry, therefore, concerns the ethical obligations of a lawyer who offers non-legal services through mail solicitation.

Rule 7.3 governs the solicitation by a lawyer of “professional employment” and does not apply to solicitation materials used by a lawyer offering his or her services in a non-legal capacity. Moreover, Rule 7.3 governs only contacts with “prospective clients.” The correspondence described in this inquiry would not be sent to any prospective clients. Indeed, it would be sent only to lawyers, not even directly to the parties involved in any potential mediation. For these reasons, we conclude that Rule 7.3 does not prohibit or govern the content of the proposed communications. This conclusion is in accord with a recent advisory opinion of the Maryland State Bar Association Committee on Ethics (Opinion 93-10, Jan. 1993) digested in 9 ABA/BNA Lawyers’ Manual on Professional Conduct 43.

Other general ethical obligations, however, may be implicated by the proposed communication. Most importantly, Rule 7.1 imposes a general obligation on lawyer not to “make a false of misleading communication about the lawyer or the lawyer’s services.” Thus, to the extent that Lawyer A uses law firm letterhead for the communication, it is important to make clear that Lawyer A is not proposing to offer legal services, and Lawyer A must avoid any suggestion that he or she will be representing any of the parties in the mediation. On the other hand, if Lawyer A does not use law firm letterhead, there would not appear to be a per se obligation to inform the recipient of the fact that A is a lawyer, absent special circumstances that would cause the failure to disclose that information to be misleading.

Lawyer A must avoid any false misrepresentations and, in describing areas of experience, must comply with the requirements of Rule 7.4 regarding the use of terms such as “expert,” “authority,” or “specialist.”

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