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ADR and the new rules: the role of third-party neutrals: for the first time, the Illinois Rules of Professional Conduct address the ethical obligations of attorneys practicing as third-party neutrals.

The 2010 Illinois Rules of Professional Conduct address for the first time the ethical obligations of attorneys practicing as third-party neutrals. Comment 1 to Rule 2.4 explains why: "Alternative dispute resolution has become a substantial part of the civil justice system."

Long-time practitioners of ADR should be heartened that ADR has flourished sufficiently to merit such attention in the Rules. Rule 2.4, "Lawyer Serving as Third-Party Neutral," is a completely new rule defining third-party neutral practice and as the expectations of an attorney acting in that capacity. Its approach is heavily dependent on the ABA model rule of the same number.

Duty to inform unrepresented parties

Section (a) of rule 2.4 provides that a "lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter."

Section (b) sets out the ethical obligations of those acting as third-party neutrals straight-forwardly: "A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them and shall explain to them the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

Section (a) of the Illinois rule reads identically to the ABA model rule and provides a broad definition of the third-party role. Two points are worth making about this section of the Illinois rules.

First, the definition is clearly intended to include the full range of neutral roles in the ADR field. While the rule specifically includes mediation and arbitration, it certainly also covers lawyers acting as conciliators, arbitration panelists, and evaluators, and it does so with respect to private processes as well as court-annexed processes.

Second, the expansive definition of third-party neutral practice reinforces the considerable latitude parties and ADR practitioners have enjoyed in creating processes to resolve legal disputes.

Section (b) of the rules describes the professional responsibility attendant to third-party practice: to disclose the exact nature of the service the attorney intends to provide. While any client seeking the services of an attorney as third-party neutral may find the distinction between this role and the traditional representation role elusive, parties not represented by counsel are particularly at risk.

The ABA model rule on which our Illinois rule is based includes language that limits the duty of the attorney to disclose and explain his or her neutral role to situations in which "the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter." The Illinois duty is absolute: in any third-party neutral circumstance, regardless of the sophistication of the client, the Illinois attorney must disclose the nature of the third-party role he or she is undertaking, as well as explain how that role differs from traditional legal representation.

Attorney as advocate v. attorney as neutral

The comments to the Illinois rule add clarifying points that merit brief discussion. First, the comments make it clear that attorneys serving as third-party neutrals are subject to the balance of the Rules of Professional Conduct even if they also choose to follow codes of conduct written specifically for third-party neutrals. Indeed, the comments specifically direct attorney neutrals to be aware of rules related to conflicts of interest and the duty to be candid.

Second, the comments highlight an important difference between the attorney-as-advocate and attorney-as-neutral roles: the attorney-client privilege does not attach to service as a third-party neutral. Attorneys are advised to assess the needs of individual clients in terms of this distinction, but the presumption is that the privilege matter will be discussed with all clients.

Third, attorney neutrals are bound by court rules and state statutes related to third-party neutral practice just as are nonattorney neutrals. The most important of those additional authorities is undoubtedly the Uniform Mediation Act ("UMA"), found at 710 ILCS 35/1.

The UMA includes three central themes. The first deals with confidentiality in mediation, with sections 5-8 establishing a confidentiality privilege for mediation communications that may be asserted by the disputants, participants and mediator(s), and barring under certain circumstances mediator disclosures to courts, administrative agencies, and the general public.

The second theme, found in section 9, addresses three issues relating to the delivery of the mediation process: conflicts of interest, disclosure of mediator qualifications, and the right of disputants to obtain representation by counsel or other support persons. Finally, section 10 proposes provisions allowing for judicial enforcement of agreements to mediate and the confirmation of mediated settlement agreements.

Even after the passage of this rule, Illinois offers relatively sparse regulation of ADR processes and practitioners. Unlike other states, where robust codes of professional conduct have been adopted for ADR, Illinois has proceeded much more conservatively. The Illinois rules and statute collectively obligate the attorney neutral to do three things: disclose the nature of their role, preserve confidences that arise in ADR processes, and conform to the wider range of professional responsibilities and local ADR procedural rules in force throughout the state.

By Thomas D. Cavenagh Thomas D. Cavenagh teaches law and conflict resolution at North Central College in Naperville and edits In the Alternative, the newsletter of the ISBA's Alternative Dispute Resolution Section.
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Author:Cavenagh, Thomas D.
Publication:Illinois Bar Journal
Date:Sep 1, 2010
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