The Appeals Court recently addressed whether an attorney whose resignation from the practice of law was accepted as a disciplinary sanction may work as a mediator. In the Matter of Anthony Raoul Bott, 462 Mass. 430 (2012). The Supreme Judicial Court (“SJC”) concluded, in the context of bar disciplinary proceedings, mediation may constitute legal work such that, following, suspension, disbarment or disciplinary resignation, an individual may serve as a mediator in certain circumstances and under specified conditions.

On May 24, 2005, Bott submitted an affidavit of resignation from the practice of law while he was under investigation by the Board of Bar Overseers (“the “Board”). The Board accepted his resignation as a disciplinary action. In 2009, Bott completed a mediation training program. In September of 2012, Bott petitioned a Single Justice of the SJC for relief requesting permission to serve as a mediator. The Single Justice reported the case to the full panel.

The Court first determined that, as a general proposition, a person does not engage in the practice of law when acting as a mediator under the Uniform Rules on Dispute Resolution (”Uniform Rules”). The Court reasoned that many activities generally associated with the practice of law are also undertaken by persons in other professions. For an activity to be considered the “practice of law” so a non-lawyer cannot perform it without committing the unauthorized practice of law, the activity itself must fall “wholly within” the practice of law. The Uniform Rules define mediation as “a voluntary, confidential process in which a neutral is invited or accepted by disputing parties to assist them in identifying and discussing issues of mutual concern, exploring various solutions, and developing a settlement mutually acceptable to the disputing parties.” The Uniform Rules require all individuals seeking to serve as a mediator in a court-connected dispute resolution, including attorneys, to undertake mediation training. The Uniform Rules do not state training in the law is a substitute for training as a mediator or suggest that a legal education enhances or contributes to skill as a mediator. Under the Uniform Rules, a mediator is prohibited from giving legal advice. For these reasons, the SJC held, as a general proposition, a person does not engage in the practice of law when acting as a mediator in a manner consistent with the Uniform Rules. This outcome allows individuals who are not attorneys to engage in mediation under the Uniform Rules.

The SJC then analyzed whether mediation, when performed by an attorney who has resigned from the practice of law while the subject of a disciplinary action or has been disbarred or suspended from the practice of law, constitutes legal work in the context of bar disciplinary matters. The SJC stated there may be circumstances where work that does not constitute the “practice of law” when engaged by non-lawyers may qualify as “legal work” that a disbarred or suspended lawyer is precluded from performing. The SJC held an attorney who has been disbarred or suspended from the practice of law may be prohibited, in some circumstances from acting as a mediator. The SJC found the following considerations to be relevant in determining whether mediation or another activity that does not constitute the practice of law by non-lawyers may, in the context of bar disciplinary matters, constitute legal work when performed by a lawyer:

  1. whether the type of work is customarily performed by lawyers as part of their legal practice;
  2. whether the work was performed by the lawyer prior to suspension, disbarment or resignation for misconduct;
  3. whether, following suspension, disbarment or resignation for misconduct, the lawyer has performed or seeks to perform the work in the same office or community, or for other lawyers; and,
  4. whether the work as performed by the lawyer invokes the lawyer’s professional judgment in applying legal principles to address the individual needs of clients.

With regard to the first three considerations, the SJC found:

  1. prior to his resignation, Bott had not engaged in mediation;
  2. he does not propose to provide mediation services to attorneys with whom he previously was engaged in the practice of law; and
  3. he will not conduct mediation in the same office from which he previously conducted his law practice.

Thus, the SJC focused on whether mediation as performed by Bott will invoke his professional judgment in applying legal principles to address the individual needs of mediation clients. The SJC stated the extent to which a lawyer mediator draws on his legal training and experience may depend on whether the lawyer employs “facilitative” mediation (which does not call upon the mediator’s exercise of professional judgment) or “evaluative” mediation (in which a neutral evaluates the merits of a case and offers an opinion of its worth). The SJC remanded the case for a determination of whether Bott would be employing “facilitative” or “evaluative” mediation and whether he should be permitted to serve as a mediator prior to any future reinstatement as a member of the bar.