HEARTLAND MEDIATORS ASSOCIATION 2019 ANNUAL MEETING · 4/12/2019 · A Lawyer’s Responsibilities...

HEARTLAND MEDIATORS ASSOCIATION 2019 ANNUAL MEETING

April 12, 2019

MEDIATION ETHICS:A Review of Case-Related Dilemmas

Associates in Dispute Resolution LLC212 SW 8th Ave., Suite 207

Topeka, KS 66603 (Telephone) 785-357-1800

e-mail: [email protected]

Midwest Dispute Resolution ServicesTopeka, KS e-mail: [email protected]

LAWYER NEGOTIATION

ETHICS

2Associates in Dispute Resolution LLC

Ethical Obligations in Negotiations◦ Competence◦ Truthfulness◦ Fairness to opposing party◦ Keeping the client informed◦ Keeping the client’s confidences

See ABA Section of Litigation, Ethical Guidelines for Settlement Negotiations, August 2002

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Preamble: A Lawyer’s Responsibilities – Kansas and Missouri

[1] A lawyer, as a member of a legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibilities for the qualities of justice.

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Preamble: A Lawyer’s Responsibilities – Kansas and Missouri

[3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a non-representational role helping the parties to resolve a dispute or other matter. Some of these rules apply directly to lawyers who are or have served as third-party neutrals.

See Rules 1.2 and 2.4 [Rules 4-1.12 and 4-2.4].

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Competence: Rule 1.1 (KS) and Rule 4-1.1 (MO)

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

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Scope of Representation: Rule 1.2(KS) and Rule 4-1.2 (MO)

(a) A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation…and shall consult with the client as to the means which the lawyer shall choose to pursue. A lawyer shall abide by a client’s decision whether to settle a matter….

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Scope of Representation: Rule 1.2(KS)

(c) A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.

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Scope of Representation: Rule 4-1.2 (MO)

(c) A lawyer may limit the scope of representation if the client gives informed consent in a writing signed by the client to the essential terms of the representation and the lawyer’s limited role….

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Misconduct as to the Client: In re Coleman, 295 S.W. 3d 857 (2009)

The attorney’s conduct in accepting a settlement agreement in a wrongful death case without the consent of his client and filing a motion requesting that the court enforce the agreement against his client, violated Rule 4-1.2 requiring the attorney to abide by the client’s decisions.

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Misconduct as to the ClientIn re Lewis, 463 S.E. 2d 862 (1995)

The Georgia Supreme Court suspended a lawyer for 18 months after he arranged for a client to sign a retainer giving the attorney “full power and authority to settle, compromise, or take such action as he might deem proper for the best interest of the client.”

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Scope of Representation: Rule 1.2 (d) (KS) and Rule 4-1.2(f) (MO)

A lawyer: Shall not counsel a client to engage, or

assist a client in criminal or fraudulent conduct, but

May discuss the legal consequences of a proposed course of conduct

May counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law

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Scope of Representation: Rule 1.2(e) (KS) and Rule 4-1.2(g) (MO)

When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.

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Communication: Rule 1.4 (KS)

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with the reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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Communication: Rule 4-1.4 (MO)

(a) A lawyer shall:1. Keep the client reasonably informed about the

status of a matter;2. Promptly comply with reasonable requests for

information; and3. Consult with the client about any relevant

limitation on the lawyer’s conduct when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law.

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Communication: Rule 4-1.4 (MO)

(continued)

(b) A lawyer shall explain in a manner to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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Communication

Comment [1] (KS) and [2] (MO)

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so…

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Dispute Resolution Communication

Question:Is there an obligation to discuss advantages of dispute resolution with the client?

This obligation is expressly stated in Virginia (Rule 1.2) and Colorado and Hawaii (Rule 2.1).

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Dispute Resolution Communication

In Kansas and Missouri, such an obligation will likely reside in Rule 1.1 and 4-1.1 (competence) and Rule 1.4 and 4-1.4 (communication) and the comments. (Also relevant: Rule 3.2 (KS) and 4-3.2 (MO) Expediting Litigation “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

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Confidentiality of Information: Rule 1.6(KS) and Rule 4-1.6 (MO)

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

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Confidentiality of Information: Rule 1.6(KS)

b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a crime; or

(2) To comply with requirements of law or orders of any tribunal….

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Confidentiality of Information: Rule 4-1.06 (MO)

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm…

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Comment [4](KS)A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

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Comment [5] (KS) [3] (MO)…The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

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Comment [6] (KS) [5] (MO)A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client’s instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.

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Conflict of Interest – Current Clients: Rule 1.7(a)(2)(KS) and Rule 4-1.7(a)(2)(MO)This rule directs that “a lawyer shall not

represent a client if the representation involves a concurrent conflict of interest [including the situation where] there is a substantial risk that the representation will be materially limited…by a personal interest of the lawyer.

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Conflict of Interest: Current ClientsRule 1.8(3)(g) (KS) and Rule 4-1.8(3)(g) (MO)

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients…, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all of the claims or pleas involved and of the participation of each person in the settlement.

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Conflict of InterestIn re Coleman, 295 S.W. 3d 857 (2009)

The Missouri Supreme Court suspended a lawyer for one year for drafting a retainer agreement purporting to give him the exclusive right to settle his client’s three cases in taking direct adverse action against his client when he filed a motion to enforce the agreement.Conflict of Interest Rule 4-1.7 (2007)

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Advisor: Rule 2.1(KS) and Rule 4-2.1 (MO)

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, the lawyer may refer not only to the law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.

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Meritorious Claims & Contentions: Rule 3.1(KS) and Rule 4-3.1 (MO)

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law….

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Truthfulness in Statements to Others: Rule 4.1(KS) and Rule 4-4.1 (MO)

In the course of representing a client, a lawyer shall not knowingly:

(a) Make a false statement of material fact or law to a third person; or

(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6.

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Comment (KS and MO)

A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform a party opposing (person) of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.

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Comment (continued)

This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.

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Comment (continued):Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.

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ABA Formal Opinion 06-439, April 12, 2006

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation…statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing” ordinarily are not considered “false statements of material fact” within the meaning of the Model Rules.

Standing Committee on Ethics and Professional Responsibility

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Affirmative MisrepresentationABA Formal Opinion, 06-439:

The opinion explains that it would be permissible for a lawyer to maintain that his or her client will not resolve a dispute for less than $200.00 when, in reality, the client is willing to accept $150.00.

Affirmative MisrepresentationABA Formal Opinion, 06-439: (continued)

In addition, a negotiator buying goods or services may overstate the availability of alternative sources of supply to leverage a better deal with the seller.

Affirmative MisrepresentationABA Formal Opinion, 06-439: (continued)

The opinion further explains that an attorney/negotiator makes a material false statement of fact by declaring that a supporting document or witness will be presented at trial when the document does not exist, or the witness cannot, or will not, provide the testimony characterized by the lawyer.

In essence, lawyers may not knowingly lie about material facts that result in justifiable reliance, but may engage in settlement posturing and hyperbole.

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A misstatement must involve a fact or the law that is material to the negotiation.

The key to determining materiality is whether or not the opposing lawyer might justifiably rely on that representation and alter his or her settlement position.

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The three basic areas of misrepresentations concern: ◦ Affirmative misrepresentations◦ Truthful statements that are incomplete

and misleading, and◦ The failure to disclose information

necessary to prevent misunderstandings by the other side.

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(Embarrass, Delay or Burden a Third Person)Rule 4.4(a)(KS) and Rule 4-4.4(a) (MO)

This rule prohibits a lawyer from embarrassing a client from using a “means that have no substantial purpose other than to embarrass, delay or burden a third person.”

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STATUTORY REQUIREMENTS,

CASE LAW & ETHICAL RULES IMPORTANT TO

MEDIATORS

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Mediation…is the process by which a neutral mediator appointed by the court, or by a hearing officer, assists the parties in reaching a mutually acceptable agreement as to the issues of child custody, residency, visitation, parenting time, division of property or other issues….


K.S.A. 23-3501MEDIATION DEFINED

The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement…



An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator.



(a) The court or hearing officer may order mediation of any contested issue of child custody, residency, visitation, parenting time, division of property or other issues, at any time, upon the motion of a party or on the court’s own motion.

K.S.A. 23-3502APPOINTMENT & QUALIFICATIONS


(b) …the court or hearing officer shall appoint a mediator, taking into consideration the following:

(1) An agreement by the parties to have a specific mediator appointed by the court or hearing officer;

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Associates in Dispute Resolution LLC

(2) The nature and extent of any relationships the mediator may have with the parties or any personal, financial or other interests the mediator may have which could result in bias or a conflict of interest;

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(3) The mediator’s knowledge of: The Kansas Judicial System and Procedure; Other resources in the community to which the

parties can be referred; Child development; Clinical issues relating to children; The effects of divorce on children; and, The psychology of families; and,

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(4) The mediator’s training and experience in the process and techniques of mediation.

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(a)The avoidance of mediation ordered pursuant to K.S.A. 5-509, and amendments thereto, without just cause or excuse, shall constitute evidence of bad faith.

(b)Upon a finding that a party to a dispute has acted in bad faith by deliberately and intentionally avoiding mediation, the court may order such party to pay the reasonable attorney fees of the other party or parties which are directly related to the mediation.

K.S.A. 5-518 – Intentional Avoidance of Mediation

K.S.A. 5-518 INTENTIONAL AVOIDANCE OF MEDIATION


(a) A mediator appointed…shall treat all verbal or written information transmitted between any party to a dispute and a mediator conducting the proceeding or the staff of an approved program under K.S.A. 5-501 et seq…as confidential communications.

K.S.A. 23-3505CONFIDENTIALITY


(a) Continued:No admission, representation or statement made in the proceedings shall be admissible as evidence or subject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all of the parties consent to a waiver.



(a) Continued:Any party and the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding, has a privilege in any action to refuse to disclose and to prevent a witness from disclosing, any communication made in the course of the proceeding.



(a) Continued:The privilege may be claimed by the party or the neutral person or anyone the party or the neutral person authorizes to claim the privilege. A neutral person conducting the proceedings shall not be subject to process requiring disclosure of any matter discussed within the proceedings unless all parties consent to a waiver.

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(b) The confidentiality and privilege requirements…shall not apply to:

(1) information that is reasonably necessary to allow investigation of or action for ethical violations against the neutral person…



(b) Continued(2) any information that the mediator

is required to report under K.S.A. 38-2223 and amendments thereto;

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(b) Continued(3) any information that is reasonably

necessary to stop the commission of an ongoing crime or fraud or to prevent the commission of a crime or

fraud in the future for which there was an expressed intent to commit such crime or fraud;

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(b) Continued(4) any information that the

mediator is required to report or communicate under the specific provisions of any statute or in order to comply with orders of the court; or,

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(b) Continued(5) any report to the court that a

party has issued a threat of physical violence against the party, a party’s dependent or family member, the mediator or an officer or employee of the court with the apparent intention of carrying out such threat.

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(a) Persons making reports:(1) when any of the following persons

has reason to suspect that a child has been harmed of physical, mental or emotional abuse or neglect or sexual abuse, the person shall

report the matter promptly…

K.S.A. 38-2223REPORTING OF ABUSE & NEGLECT OF CHILDREN


(a) Continued:(2) in addition to the reports required

under subsection (a)(1), any person who has reason to suspect that a child may be a child in need of care, may report the matter…

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(b) Form of Report(1) The report may be made orally and

shall be followed by a written report if requested…

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(c) To whom made. Reports made pursuant to this section shall be made to the secretary, except as follows:(1) When the Department of Social and

Rehabilitation Services is not open for business, reports shall be made to the appropriate law enforcement agency.

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(c) Continued:(2) Reports of child abuse or neglect

occurring in an institution operated by the Secretary of Social and Rehabilitation Services or the Commissioner of Juvenile Justice shall be made to the Attorney General.

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(d) Death of child. Any person who is required…to report a suspicion that a child is in need of care and who knows of information relating to the death of a child shall immediately notify the Coroner…

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(e) Violations.(1) Willful and knowing failure to make

a report required by this Section is a Class D Misdemeanor. It is not a defense that another mandatory reporter made the report.

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(e) Continued.(2) Intentionally preventing or

interfering with the making of a report required by this section is a Class B Misdemeanor.

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(e) Continued.(3) Any person that willfully and

knowingly makes a false report pursuant to this section or makes a report that such person knows lacks factual foundation is guilty of a Class B Misdemeanor.

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The Model Standards of Conduct for Mediators was prepared in 1994 by the American Arbitration Association, the American Bar Association’s Section on Dispute Resolution, and the Association for Conflict Resolution. A joint committee consisting of representatives from the same successor organizations revised the Model Standards in 2005. Both the original 1994 version and the 2005 revisions have been approved by each participating organization in August/September 2005.

AUGUST 2005MODEL STANDARDS OF CONDUCT FOR

MEDIATORS


Self Determination:

A mediator shall recognize mediation As based on the principle of self-determination by the

parties.

KANSAS ETHICAL STANDARDS FOR MEDIATORS

RULE 903


Impartiality:

A mediator shall conduct mediation in an impartial manner.


RULE 903


Conflicts of Interest:A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. The need to protect against conflicts of interest also governs conduct that occurs during and after the mediation.


RULE 903


Competence:A mediator shall mediate only when the mediator has the necessary qualifications to satisfy the reasonable expectations of the parties.


RULE 903


Confidentiality:A mediator shall maintain the reasonable expectations of the parties with regard to confidentiality.


RULE 903


Quality of the process:A mediator shall conduct the mediation fairly, diligently and in a manner consistent with the principle of self-determination by the parties.


RULE 903


Advertising & Solicitation:A mediator shall be truthful in advertising and refrain from promises and guarantees of results.


RULE 903


Fees:A mediator shall fully disclose and explain the basis of compensation, fees and charges to the parties.


RULE 903


Obligations to the Mediation Process:

Mediators have a duty to improve the practice of mediation.


RULE 903


HEARTLAND MEDIATORS ASSOCIATION 2019 ANNUAL MEETING

April 12, 2019

MEDIATION ETHICS:A Review of Case-Related Dilemmas

Associates in Dispute Resolution LLC212 SW 8th Ave., Suite 207

Topeka, KS 66603 (Telephone) 785-357-1800

e-mail: [email protected]

Midwest Dispute Resolution ServicesTopeka, KS e-mail: [email protected]

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