Last week, the Massachusetts Supreme Judicial Court ruled that an attorney who has resigned from the law as a disciplinary sanction, or has been disbarred or suspended, may not be able to mediate because mediation may constitute legal work that would violate the bar’s discipline.
The ruling states that one of the factors to be considered in deciding whether a disciplined attorney is undertaking legal work is “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.” This factor may come into play if the attorney uses evaluative mediation. As the Supreme Judicial Court did not have the necessary information about the practice of mediation in the state, the case was remanded to the lower court for a decision about whether the former attorney-turned-mediator in question engaged in work that meets the new test for legal work.
The decision brings up two questions. First, does evaluating the case really constitute legal work? And second, does the distinction the Court makes between disciplined lawyers who are mediating and mediators who are not lawyers hold up? The ruling confirms that mediation in itself is not the practice of law, but finds that it could very well be “legal work” to evaluate a case in mediation. The Court seems to be drawing a fine line – only an attorney can “invoke the lawyer’s professional judgment….to address the individual needs of clients.” Yet, non-lawyers who practice evaluative mediation invoke their professional judgment to address the needs of clients, too. The Court’s reasoning seems to lead to the conclusion that a mediator who is not an attorney cannot be evaluative without practicing law.
I would love to hear others’ thoughts on this.