Mediator Must Answer Bar’s Questions

The South Carolina Supreme Court has issued a declaratory judgment requiring an attorney mediator to cooperate with a bar investigation of an attorney 

Petitioner is an attorney who also serves as a certified mediator. The Office of Disciplinary Counsel (ODC) received a complaint about certain conduct of an attorney (Lawyer) who represented a client in a mediation conducted by Petitioner. The complaint alleges that Lawyer engaged in behaviors during the mediation that raise serious questions as to his then-present ability to provide his client competent representation.  In the course of investigating this complaint, ODC requested that Petitioner provide a written statement about Petitioner’s observations of Lawyer’s demeanor during the mediation.

Petitioner declined to provide a statement and, instead, filed the instant action in this Court seeking a declaration of his duties and obligations under Rule 8 of the Alternative Dispute Resolution Rules and the Rules of Professional Conduct, Rule 407, SCACR.

Attorneys are obligated to cooperate in a bar investigation notwithstanding the mandate of mediation confidentiality

this confidentiality is not absolute. Indeed, there are key policy reasons why certain communications made during a mediation are not confidential. Specifically, subsection (c) of Rule 8, SCADR, sets forth various exceptions, including that no confidentiality attaches to information disclosed during a mediation that is “offered to report, prove, or disprove professional misconduct occurred during the mediation.” Rule 8(c)(5), SCADR. This is the provision upon which ODC relies in requesting information from Petitioner about Lawyer’s demeanor during the mediation.

Declared 

Because the information ODC seeks relates to Petitioner’s observations of Lawyer’s demeanor during the mediation—namely, whether Lawyer’s behavior indicated he was intoxicated—the investigative inquiry does not relate to any communication regarding the substance of the mediation. Thus, we conclude that nothing in subsections (a) or (g) of Rule 8, SCADR, prohibits Petitioner from responding to ODC’s investigative inquiry. Accordingly, this particular matter presents no conflict between the relevant provisions of the South Carolina Alternative Dispute Resolution Rules and the Rules of Professional Conduct. Petitioner shall respond to ODC’s investigative inquiry consistent with his obligations under the Rules of Professional Conduct. Indeed, public confidence in the legal system requires that all members of the legal profession diligently and faithfully observe all relevant professional obligations, including reporting misconduct and cooperating with processes designed to ensure accountability. In other words, an attorney’s ethical misconduct cannot be ignored by other members of the legal profession or obscured by the mediation process.

(Mike Frisch)