112 N.J.L.J. 394
October 6, 1983
Participation in Private Matrimonial
Mediation Service and Subsequent
Representation of either Spouse in Divorce Action
The inquiring attorney has been asked to participate in a
private matrimonial mediation service. The inquirer states that his
participation would require him to perform one or more of the
services set forth in the following items:
Item 1: Advise both husband and wife regarding the law of equitable distribution and act as the draftsman of a property settlement agreement between the spouses, the terms of which agreement were determined by direct negotiations between the husband and wife.
Item 2: Draft a property settlement agreement setting forth the terms agreed to by the parties without the advice of the lawyer.
Item 3: Perform the services set forth in Item 2 above and then represent either the husband or the wife in the subsequent divorce proceeding.
Item 4: Advise both the husband and the wife regarding the law of equitable distribution and then represent either husband or wife in the subsequent divorce proceeding.
This Committee has previously held that a lawyer may not ethically represent one party in a divorce proceeding when the lawyer has previously represented the other party. See, e.g. Opinion 128, 91 N.J.L.J. 309 (1968); Opinion 155, 92 N.J.L.J. 358 (1969); Opinion 356, 99 N.J.L.J. 1065 (1976). Furthermore, our Supreme Court has said that after a lawyer "had attempted to counsel both husband and wife with a view to reconciliation... he could not thereafter with propriety represent either in a divorce action." In re Braun, 49 N.J. 16, 18-19 (1967).
In the course of preparing a property settlement agreement, or even in the course of discussing the applicability of the law of equitable distribution to the particular fact situation presented by clients of the matrimonial mediation service, it can be anticipated that the lawyer will obtain confidential information concerning the marital situation. Equitable distribution, even though agreed to by the parties, may have tax consequences of which they are unaware and which could have serious financial impact upon them. If the lawyer subsequently represents one party and becomes the advocate for that party, he would be violating the spirit of DR 9-101 in failing to avoid even the appearance of impropriety. Because a lawyer is required to represent his client zealously (DR 7-101) any lawyer representing one party in a divorce proceeding subsequent to his acting in a mediation role would inevitably be faced with a conflict between the lawyer's duty to act zealously on behalf of one party and the lawyer's duty to respect the confidences of the other party, albeit confidences conveyed to the lawyer in his capacity as a mediator.
In Opinion 356, supra, a wife conferred with a lawyer's partner concerning a possible matrimonial action. No notes or history were taken, no retainer was paid, no fees for the conference were charged and the matrimonial action against the husband was instituted by the wife through other attorneys. The husband sought to retain the lawyer to represent him in his appeal to the Appellate Division. The Committee noted that the confidences reposed in the lawyer might lead him to emphasize in his argument some parts of the record which he would otherwise refrain from emphasizing or to minimize or to ignore other parts of the record which he might otherwise stress. Similarly, in the context of a mediation service, one of the parties could unintentionally reveal information or exhibit a demeanor to the lawyer-mediator because the party felt confident with the lawyer's perceived role as an impartial arbitrator. For that lawyer to later appear in a proceeding in an adversary position would be, or at the very least appear to be, grossly unfair to the participant in the mediation service and the Committee believes that even full disclosure would not cure the serious ethical problems created by such a situation.
The Committee recognizes that a lawyer's participation in a private matrimonial mediation service can be valuable in resolving disputes prior to litigation in a non-adversarial setting. But it must be emphasized that in so doing the lawyer is eliminated from any future representation of either party in the divorce proceeding.