By Michael A. Hawash
Zealous Advocacy and Zealous Problem Solving:
A Lawyer’s Ethical Duties in Mediation
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n Houston and throughout Texas, mediation is by far the most predominant method of alternative dispute resolution (“ADR”). In many Harris County courts, mediation is a prerequisite for getting to trial, especially when a jury is requested. But as mediation has become more ubiquitous, the rules and ethical standards for mediators have also grown. Even so, less attention has been paid to the standards of professionalism that lawyers representing clients in mediation should follow. Clients would be far better served if lawyers had a better understanding of professionalism in mediation, as well as in the courtroom. The basic ethical duties owed by a lawyer engaged in mediation can be distilled to these five responsibilities: (1) keeping a client informed about the case, including settlement and ADR options; (2) competent representation before and during the mediation; (3) protecting confidentiality; (4) avoiding conflicts of interest; and (5) avoiding the unauthorized practice of law. The Role of the Lawyer in Mediation Although the Texas Disciplinary Rules of Professional Conduct do not specifically address the role of a lawyer in mediation,
it is important that lawyers in mediation distinguish themselves from lawyers in adversarial litigation. In particular, it is an unfortunate truism that lawyers in litigation often view the duty to be zealous advocates as outweighing their responsibility to help their clients achieve their goals. Such an attitude is especially harmful in mediation, where a lawyer is entrusted with many functions, including not just advocacy, but case evaluation, risk-analysis, counseling, and negotiation. Thus, a mediator must be not only a zealous advocate but a zealous problem solver. I. Keeping the Client Informed: Client Counseling Regarding Litigation, Mediation, Early Dispute Resolution, and Other Forms of ADR The Texas Lawyer’s Creed has an aspirational rule mandating that attorneys advise clients about mediation. But the Texas Disciplinary Rules of Professional Conduct are silent on the topic. As such, there is no specific disciplinary rule in Texas that requires lawyers to inform their clients about mediation or other ADR options. Nevertheless, lawyers do have a contextual duty within the Texas Disciplinary Rules of Professional Conduct to inform their clients about possible ways to resolve their dispute, which would include mediation and, possibly, other forms of ADR. Informed consent is the basis for most client counseling. Texas Disciplinary Rules of Professional Conduct Rule 1.03(b) requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Additionally, Rule 3.02 requires lawyers to “not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.” Lawyers should take the above disciplinary rules to heart when determining whether to discuss ADR options, including mediation, with a client. Obviously,