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[1] Mediation, arbitration, and other forms of alternative dispute resolution have been in use
for many years, but increasing demands in recent years for more prompt and efficient means of
resolving disputes of all kinds have led to an increase in the demand for the services of dispute
resolution neutrals skilled in the analysis of disputes and in conflict resolution. Lawyers are often
particularly well-suited to perform this role and should be encouraged to do so.
[2] Although service as a dispute resolution neutral is considered a law-related service
governed generally by these Rules (see Rule 5.7), the unique nature of a lawyer’s role when serving
as a dispute resolution neutral demands separate, more specific, treatment in this Rule for the
guidance of the profession and the public.
[3] This Rule provides that a lawyer may serve as a dispute resolution neutral, whether as a
mediator, non-binding arbitrator, a case evaluator, or judge or juror in a mini-trial or summary jury
trial. The scope of a lawyer’s possible service as a neutral is intended to be generally the same as
that adopted in Tennessee Supreme Court Rule 31 governing court-annexed alternative dispute
resolution. While Rule 31 covers only court-annexed alternative dispute resolution, however, this
Rule covers services as a dispute resolution neutral whether rendered in connection with court-
annexed dispute resolution proceedings or in another, perhaps wholly private context not covered
by Rule 31.
[4] This Rule does not cover the rendering by a lawyer of services related to alternative
dispute resolution that are not neutral in nature, but are more judicial in nature, such as service as an
arbitrator in a binding arbitration. Although Rule 5.7 may address a lawyer’s obligations in such a
context, this Rule does not purport to address them.
[5] Although a lawyer who serves as a dispute resolution neutral is subject to the Rules of
Professional Conduct (see Rule 5.7), many of the Rules do not directly apply to such service
because the participants in a dispute resolution proceeding are not the lawyer’s clients. Other Rules
do apply, however, and this Rule further provides specific applications of certain rules that must
apply differently in this context (including, for example, the application of rules governing conflicts
of interest).
[6] Although the requirements of this Rule are generally intended to be consistent with
those imposed on dispute resolution neutrals under Rule 31, there are duties additional to those set
out in Rule 31 that are imposed on lawyers who serve in this role. See also Standards of
Professional Conduct for Rule 31 Mediators. Even though nonlawyers certified by the Supreme
Court under Rule 31 as dispute resolution neutrals may not be subject to these Rules and the parties
to the dispute are not deemed to be the clients of the lawyer serving as their dispute resolution
neutral, the parties are properly entitled to assume that lawyers serving in this capacity are largely
subject to the same broad standards of conduct as are applicable to lawyers when they are providing
legal services to clients.
[7] The Court has set forth in Rule 31 rules and standards of professional conduct
applicable to all Rule 31 neutrals, including both lawyers and nonlawyers. Thus, paragraph (b)
contemplates that a lawyer may serve as a Rule 31 neutral if the lawyer complies with these
requirements. Paragraph (b)(9) requires that a lawyer serving as a dispute resolution neutral
pursuant to Supreme Court Rule 31 must comply fully with the requirements of that Rule.
[8] Paragraph (b) specifies the circumstances in which a lawyer may serve parties to a
dispute as a dispute resolution neutral. With respect to the parties to the dispute, Rule 1.7 is
inapplicable because there is no attorney-client relationship between the neutral and the parties to
lawyer is serving as a neutral, if the lawyer’s service as a neutral will materially limit the lawyer’s
representation of the client. Similarly, if the lawyer’s service as a neutral would be materially
adverse to one of the lawyer’s former clients, and the matters are substantially related, the lawyer
must afford the former client the protection of Rule 1.9.
[9] Conflicts of interest for lawyers serving as dispute resolution neutrals are specifically
addressed, given the fact that, although parties to a dispute resolution proceeding are not the clients
of the dispute resolution neutral, the lawyer serving as neutral must be impartial, must fully disclose
any pertinent relationships to the parties to the proceeding, and must obtain their consent to the
lawyer’s service based on these disclosures. Note that, although paragraph (b)(4) does not provide
for mandatory vicarious disqualification based on a lawyer’s current or prospective service as a
dispute resolution neutral, the fact that, for example, a lawyer asked to serve as a neutral has a
partner who currently represents one of the parties to the dispute in other matters would obviously
have to disclose this fact to the parties under (b)(7) and obtain consent to service as a neutral. Of
course, this lawyer would also have to have a reasonable belief that impartiality was possible despite
this and other such pertinent relationships. If a lawyer may not make the disclosures required by
paragraph (b)(7) because of his confidentiality obligations to a client, then the lawyer may not serve
as a dispute neutral.
[10] Paragraph (c) further provides various standards of conduct particular to service by a
lawyer as a dispute resolution neutral. Again, these rules of conduct are intended to be consistent
with Rule 31 and to address the particular situation of a neutral, who occupies a significantly
different relationship to participants in a dispute resolution proceeding than a lawyer does with
clients. Paragraphs (c)(4) and (c)(5) treat the confidentiality of all information related to the dispute
(including that obtained in individual caucuses with the parties) by analogy to the Rules concerning
the confidentiality of client information. Thus, for example, any question concerning the potential
disclosure of fraud by a participant in a dispute resolution proceeding would be addressed under
Rules 1.6, 3.3 or 4.1 as though the participant were, in fact, a client of the lawyer. Other portions of
paragraph (c), such as the ban on undisclosed compensation by one of the participants in paragraph
(c)(7), the prohibition on coercion or decision making on behalf of parties in paragraph (c)(8), and
the ban on giving legal advice to the participants in paragraph (c)(6), impose restrictions needed to
insure and reinforce the necessary impartiality of the lawyer serving as a dispute resolution neutral.
[11] Paragraph (d) requires that a lawyer serving as a dispute resolution neutral withdraw or
seek an appointing court’s permission to withdraw in certain specified circumstances, such as a
request by a party to do so or the lawyer’s reasonable belief that the lawyer’s service will not be
fruitful.
[12] Paragraph (e) establishes a lawyer’s duties toward participants in a dispute resolution
proceeding upon the termination of the lawyer’s service as a neutral for any reason, whether
because a settlement is achieved or because a party requests the lawyer’s withdrawal. Given the
impartial role of a dispute resolution neutral, it is inappropriate for a lawyer who had served as a
dispute resolution neutral to later represent any of the parties to the dispute in connection with the
subject matter of that dispute resolution proceeding. This disqualification, however, does not extend
to other lawyers associated in a law firm with the dispute resolution neutral. If, however, the parties
have successfully resolved their dispute, paragraph (e)(1) permits the lawyer-neutral to draft the
agreement settling their dispute, but this must be done in conformity with Rules 1.2(c) and 2.2.
[13]Further, paragraph (e)(2) provides that, even though the participants to a concluded
dispute resolution proceeding were not the clients of the lawyer who served as a dispute resolution
confidentiality and conflicts of interest afforded by Rules 1.6, 1.8(b), and 1.9 as if they were former
clients.
See Rule 1.0(b)
“Consultation” and “Consults” See Rule 1.0(c)
“Firm”See Rule 1.0(d)
“Materially”See Rule 1.0(g)
“Reasonable” and “Reasonably” See Rule 1.0(i)
“Reasonably Believes”See Rule 1.0(j)
With the following exceptions, the Committee intended to conform Rule 2.4 to Supreme
Court Rule 31:
1. The conflict of interest disclosure rules in paragraph (b)(5) differ from those in
which the lawyer’s service as a dispute resolution neutral is not pursuant to Rule 31. We would
recommend that Rule 31 be conformed to the Rules of Professional Conduct.
In response to recommendations from the Alternative Dispute Resolution Commission, the
Committee made the following two changes to the Preliminary Draft:
Paragraph (b): Paragraph (b) was restructured so that its provisions are applicable to all
ADR proceedings, whether or not ordered pursuant to Rule 31. Compliance with additional
requirements imposed by Rule 31 is now mandated by Subparagraph (b)(9).
Paragraph (e): Paragraph (e)(1) has been amended to narrow the circumstances in which a
lawyer who has served as a dispute resolution may subsequently represent one or more of the
parties the lawyer served as a neutral. The preliminary draft permitted such subsequent
representation if all the parties consented. The final draft permits the lawyer, with consent of all the
parties, to draft a settlement agreement that has resulted from the dispute resolution process, but
otherwise prohibits representation in connection with the matter.
Made
1. The Committee has corrected an inaccurate cross-reference in Paragraphs (c)(4) and
(c)(5).
2. The Board of Professional Responsibility has recommended that Paragraphs (c)(4) and
(5) be amended to empower the parties to waive the confidentiality to which they would other be
entitled by Rules 1.6, 1.8(b), and 1.9(c). The change recommended by the Board is unnecessary
and would be redundant because all three of the cross-referenced confidentiality rules provide that
clients can consent to disclosure or adverse use of otherwise protected information. If, however,
the Court believes that this point needs to be made more specifically in Rule 2.4, the Committee
would recommend adding a new fifth sentence to Comment [10] that would read: “Also, like a
client, a party being served by a lawyer as a dispute resolution neutral may consent to disclosure or
use of information that otherwise would be prohibited by Rules 1.6 or 1.8(b).”
3. Mike Hester, on behalf of the Knoxville Bar Association, has voiced concern that
paragraph (b)(7) requires a lawyer/neutral to consult with the parties about any interests of the
lawyer’s clients that may materially affect the lawyer’s impartiality. The concern is that this may
require a disclosure that would be prohibited by Rule 1.6. The Committee’s response is to make
no change to the consultation requirement, because parties to a dispute resolution process must be
advised if the neutral’s representation of a client will materially limit the neutral’s impartiality.
Rather, the Committee has added a sentence to Comment [9] that clarifies that, if a lawyer cannot
make adisclosure required by Paragraph (b)(7) because it would require disclosure of information
relating to a client’s representation and the client has not consented to the disclosure, the lawyer
simply cannot serve as a neutral because the lawyer cannot provide the consultation needed for the
parties’ consent to be effective. This is no different than the outcome that would result if a lawyer
needed consent of a client to a representation affected by a conflict of interest and could not provide
the client with information the client needed to make an adequately informed decision about whether
to consent to the conflict.
4. Mr. Hester has also voiced concern about the requirement in Paragraph (c)(6) that “if the
lawyer believes that an unrepresented party does not understand how a proposed agreement might
adversely affect his or her legal rights or obligations, the lawyer shall advise the party to seek the
advice of independent counsel.”The concern is that this will serve as a “red flag” that the
agreement is a bad one and that such conduct is inconsistent with the role of aneutral. The
Committee’s response is not to delete the obligation to advise the unrepresented party to seek
independent counsel. Rather, the Committee proposes that Paragraph (c)(6) be modified to
neutralize the obligation so it applies not only when there would be an adverse legal effect but rather
at any time the lawyer believes that an unrepresented party does not understand the legal effect of a
proposed agreement. The Committee would also note that this obligation can be satisfied by giving
this advice to all unrepresented parties at the outset of the dispute resolution process.
5. Mr. Joe Manuel, of Chattanooga, has objected to Paragraph (e)(1) to the extent that it
permits a lawyer who has served parties in a dispute resolution process to subsequently draft their
settlement agreement. Apart from this general objection, he is especially troubled because the Rule
appears to permit a lawyer who had withdrawn as the mediator prior to the completion of the
process to thereafter draft the agreement the resulted from the process. Although the Committee
does not agree with Mr. Manuel that there should be an absolute bar against the neutral drafting the
agreement between the parties, it is recommending that Paragraph (e)(1) be modified to require the
lawyer to comply with Rule 1.2(c) (limited representation must be reasonable under the
between clients in a transaction between them). This is because the lawyer who is drafting the
agreement has changed roles. He or she is no longer serving the parties as a dispute resolution
neutral, but is now undertaking their representation as an intermediary between clients. This is
partially responsive to Mr. Manuel’s concern because there will be instances in which
circumstances arising in connection with the dispute resolution process would preclude the lawyer
from thereafter drafting the agreement as a Rule 2.2 intermediary.
CHAPTER 3
ADVOCATE
PROPOSED RULE 3.1
MERITORIOUS CLAIMS AND CONTENTIONS
A lawyer shall not bring or defend, or continue with the prosecution or defense of a
proceeding, or assert or controvert, or continue to assert or controvert, an issue therein unless,after
reasonable inquiry, the lawyer has a basis for doing so that is not frivolous, which includes a good
faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant
in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may
nevertheless so defend the proceeding as to require that every element of the case be established.
[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause,
but also a duty not to abuse legal procedure. The law both procedural and substantive, establishes
the limits within which an advocate may proceed. However, the law is not always clear and never is
static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's
ambiguities and potential for change.
[2] The filing of an action or defense or similar action taken for a client is not frivolous
merely because the facts have not first been fully substantiated or because the lawyer expects to
develop vital evidence only by discovery. What is required of lawyers, however, is that they act
reasonably to inform themselves about the facts of their client’s case and the law applicable to the
case and then act reasonably in determining that they can make non-frivolous arguments in support
of their client’s position. Such an action is not frivolous even though the lawyer believes that the
client's position ultimately will not prevail. The action is frivolous, however, if the client desires to
have the action taken primarily for the purpose of harassing or maliciously injuring a person or if
the lawyer is unable either to make a non-frivolous argument on the merits of the action taken or to
support the action taken by a non-frivolous argument for an extension, modification or reversal of
existing law.
[3] Although this Rule does not preclude a lawyer for a defendant in a criminal matter from
defending the proceeding so as to require that every element of the case be established, the defense
attorney must not file frivolous motions and must give notice to the prosecution if the lawyer
decides to abandon an affirmative defense that the lawyer had previously indicated would be
presented in the case.
[4] Prior to filing a complaint in a civil matter, a lawyer should act reasonably to promote
settlement of the matter in dispute, including consultation with the client about the use of mediation
or other alternative means of dispute resolution.
See Rule 1.0(i)