CJE Opinion No. 2011-3
Hearing Cases Where Current Tenant and Former Law Partner is Mediator
November 3, 2011
You have requested an opinion from the Committee as to whether you may hear cases in which an attorney has served as a mediator where that attorney is your former law partner and your current commercial tenant ("Attorney").(1)
The Attorney is a trained mediator in addition to an attorney. For a number of years, you and the Attorney were law partners and practiced in a building that you and your spouse own. Approximately six years ago, and three years before you went on the bench, the Attorney left the partnership. Thereafter, you were no longer partners in any capacity or entity, having changed your financial and legal relationship; you dissolved your former firm once you were appointed to the bench. The Attorney has remained in the building as your tenant, practicing law and mediation as a sole proprietor. He pays rent to your spouse who serves as manager of the building.
The Attorney's current practice consists almost exclusively of mediation. You have broken up into three categories the types of mediations in which the Attorney is involved: private-party mediations; lawyer-assisted mediations; and volunteer conciliation. Before the Attorney commences work in any of these three categories, he has the parties sign an agreement with him pursuant to which they will not subpoena the Attorney or his notes to court if they are unable to resolve the matter.(2) As a consequence of this agreement, the Attorney cannot be called to testify in any contested matter.
According to your letter, the details of each of the three types of mediations are as follows:
A. Private-Party Mediations
In this capacity, the Attorney does not act as an advocate. Instead, individual parties without attorneys retain the Attorney to mediate a dispute. By the time these matters come before the court, the Attorney has completed his work and has no ongoing role in the case. The court's role has no influence on the financial relationship between the parties and the Attorney.
1. Successful Mediation
A successful mediation occurs if the parties are able to come to an agreement. Once they reach an agreement, the Attorney drafts it into a legally acceptable form that may or may not reveal in the text that the Attorney served as the mediator; if the Attorney's name does not appear in the agreement, you have no way of knowing of his involvement. The parties submit the agreement to court for approval, and, in some instances, the Attorney prepares or assists the parties with their pleadings. The parties finalize their settlement through the court either as self-represented litigants or with attorneys.
If the court does not approve the agreement, the parties may return to the Attorney for further assistance, they may find another mediator, or they may hire individual attorneys.
2. Unsuccessful Mediation
If the parties are unable to reach an agreement, the mediation is unsuccessful, and they are referred to attorneys who may assist the parties in their continued attempts to settle the matter or may initiate litigation. The parties may also proceed as self-represented litigants in a contested matter. You would be unaware of the Attorney's previous involvement in the case as the parties' unsuccessful mediation does not appear in the pleadings and the parties have no reason to refer to it.
B. Lawyer-Assisted Mediations
For this type of mediation, lawyers representing opposing parties hire the Attorney to mediate one or more disputed issues. Generally, by the time of the Attorney's involvement, the parties' case has already been filed in court; on occasion, however, the Attorney is engaged before the complaint is filed. The Attorney may meet alone with the parties, or he may meet with the parties and their attorneys together.
1. Successful Mediation
Once the parties reach an agreement as to the disputed issues, the Attorney's role ends. Typically, the lawyers draft the agreement and present it in court. There is no reason for the parties or their lawyers to inform the court how they reached the agreement, thus you would not know of the Attorney's involvement.
2. Unsuccessful Mediation
If the parties are unable to resolve the issues, the Attorney's role ends, and the litigation proceeds through the attorneys. Similarly, in this instance, there is no reason for the parties or their lawyers to inform the court of their failed attempt at mediation before or during the litigation, thus you would not know of the Attorney's involvement.
C. Volunteer Conciliation
The Attorney serves on a panel of volunteer conciliators who go to the courthouse four-to-six times a year to meet with parties in order to attempt to mediate their disputes. These parties are either self-represented or have attorneys. You may or may not be aware of the Attorney's presence as a conciliator on a particular day; and, thereafter, your awareness of his connection with a case as a conciliator depends on whether his name appears in the separation agreement or whether an inquiry is made.
1. Successful Conciliation
If the conciliation is successful, the Attorney may assist the parties in preparing an agreement.
2. Unsuccessful Conciliation
If the parties cannot reach an agreement and seek the Attorney's input, the Attorney gives his opinion as to the likely outcomes if they litigate the case.
II. Questions Presented
You note in your letter that the Attorney does not seek to appear before you in any cases in which he appears as an attorney. Instead, you request clarification as to whether and under what circumstances you must recuse yourself from hearing cases in which the Attorney has served as a mediator. To this end, you have asked six questions:
1. If the Attorney acts as a mediator for non-represented clients who do not reach an agreement and thereafter are referred to attorneys and proceed to litigation with attorneys, may you hear the case?
a. Must you or other court personnel require every self-represented litigant to disclose whether or not the Attorney tried to mediate the case unsuccessfully?
2. If the Attorney mediates a case with attorneys and the parties reach an agreement that is then drafted and presented to the court by attorneys for the litigants may you hear the case?
a. Does it make any difference whether the Attorney includes his name in the agreement that is reached?
b. Does it make any difference whether the Attorney drafts or assists in drafting the pleadings in the matter as well as the mediation agreement?
c. Must you or other court personnel require every self-represented litigant who brings in a signed separation agreement to disclose whether or not the Attorney assisted them to reach that agreement?
3. If the Attorney mediates a case with attorneys and the parties reach an agreement that is then drafted and presented to the court by attorneys for the litigants may you hear the case?
a. Must you or other court personnel require every self-represented litigant who brings in an agreed-upon partial agreement or full separation agreement to disclose whether or not the Attorney assisted them at any time during the pendency of the case to reach that agreement?
4. If the Attorney mediates a case with attorneys and the parties do not reach an agreement and the matter is then litigated with attorneys, may you hear the case?
a. Would it make a difference if the parties proceed without counsel after a failed mediation?
b. Must you or other court personnel require every represented or pro se litigant to disclose whether or not the Attorney ever assisted them at any point before or during the litigation?
5. If as a volunteer conciliator, the Attorney successfully conciliates a case that is assigned to you, must the case then be transferred to another judge?
a. Must you or other court personnel require every litigant to disclose whether or not s/he has participated in voluntary conciliation and if so, whether the Attorney was the conciliator?
b. What if the Attorney acts as volunteer conciliator but no agreement is reached and the case thereafter proceeds on a contested basis?
6. If you are the judge assigned to a case in which the lawyers seek the Attorney's assistance as a mediator during the course of the litigation and he mediates the issue or the entire case to a successful conclusion, may you hear the finalization of the case? If the mediation is not successful, must the case be transferred to another judge?
a. Must you or other court personnel require all litigants and attorneys affirmatively to report any involvement by the Attorney at any point in their cases whether or not some or all of the case is resolved by agreement?
Regardless of the type of mediation in which the Attorney participates, his involvement is complete by the time the matter comes before you; your role has no influence on the financial relationship, if any, between the Attorney and the parties; and you may or may not know of the Attorney's involvement. Further, as a mediator, the Attorney does not "serve as a lawyer," as the Committee has interpreted that phrase, except, perhaps, when he assists with the preparation of pleadings in the "Private-Party" type of mediation and when he gives the parties his opinion of the likely outcomes if they litigate their case during the second state of a conciliation. See, e.g., CJE Opinion 95-5 (suggesting that "any detailed substantive discussion of a legal problem" should be treated as involving service as a lawyer "even if the discussions are preliminary to retention of the lawyer by the prospective client").(3)
In essence, your six questions may be simplified to one: does the Attorney's status as your former law partner and/or as your current tenant require you to recuse yourself from all matters in which he has served as a mediator? While the Code does not mandate your disqualification, you should conduct the two-prong inquiry to determine whether hearing matters
the Attorney has mediated places your impartiality in question.
A. Code-Mandated Disqualification
1. Status as Former Law Partner
Under the Code, "[a] judge shall disqualify himself or herself in a proceeding in which a judge's impartiality might reasonably be questioned, including . . . where . . . a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter in controversy . . . ." Section 3E(1)(c) (emphasis added). This section is "particularly concerned with the effect a judge's personal knowledge of the facts or parties in a case may have on his impartiality." CJE Opinion 89-2 (considering precursor to Section 3E(1)(c)).
Disqualification under this section is therefore expressly limited to situations involving matters that were "in the office during their association[,]" id., because "any matter pending in the office during the period of the association might have been the subject of office discussion." CJE Opinion 98-19, citing CJE Opinion 89-2. "[K]nowledge gained by a former associate after the association ended would pose significantly less concern." CJE Opinion 89-2. Consequently, "there is no across the board disqualification from cases in which a judges' former partner" serves as an attorney where the representation "did not occur while the judge and the [attorney] were law partners." CJE Opinion 2004-1, citing CJE Opinion 89-2; e.g., CJE Opinion 95-6 (concluding that judge was "not required to recuse [him]self from a matter where a former associate represents a party so long as [he] [was] not associated with the lawyer at any time during his representation of the party").
Here, your association with the Attorney ended six years ago, and three years before your appointment to the bench, therefore it is unlikely that any matter that arose during your association with the Attorney will come before you now. The fact that the Attorney is acting in the capacity of a mediator rather than a lawyer does not alter the analysis. In this respect, CJE Opinion 98-19 is directly on point. There, the judge asked whether he should recuse himself "from sitting on cases that [his] former partner . . . participated in as mediators." CJE Opinion 98-19. The Committee concluded that the same concern that arises when a former partner represents a party in a matter was pending in the office during the association "exists where a case was pending in the mediation practice during the judge's association with it. . . . [and that] the same disqualification should apply." Id. Thus, the Committee advised the judge that the precursor to Section 3E(1)(c) did not require him to recuse himself "from sitting on cases in which [his] former partner . . . acted as mediator, except cases that were pending in the practice during the period of [their] association." Id.
Accordingly, the Code does not mandate your disqualification unless the case before you in which the Attorney served as a mediator arose during your association with Attorney.
2. Status as Tenant
The Code provides that
The basis for the concluding that the judge's disqualification was required in CJE Opinion 93-3 is that the relationship is mutually beneficial: the judge has a financial interest in his tenant, and "the attorney has a financial interest, direct or indirect, in the outcome of the cases in which he provides representation . . . ." CJE Opinion 98-19. Therefore, "a whiff of impropriety cannot be avoided where the judge has financial dealings with one who has an interest in the case the judge must decide." Id.
Again, CJE Opinion 98-19 is directly on point, although in the context of considering the mediator's status as the judge's current tenant, the Committee concluded that the distinction between the role of attorney and mediator was significant. Id. "[T]he same reasoning [that applies when the tenant appears as an attorney] is not generally applicable to a tenant of the judge whose only relationship to the case is that of mediator. In the usual case, one who has tried to mediate a dispute has no financial interest in its outcome in court." Id. (emphasis added). As the financial interest is one-sided, no Code violation results from the judge's hearing the cases in which the tenant was the mediator. See id.
Your letter makes clear that the Attorney's role is generally completed by the time the case comes before you and that your involvement in the case has no effect on the financial relationship, if any, between the Attorney and the parties.(4) Accordingly, the Code does not mandate your recusal from these cases.
B. Personally-Determined Disqualification
As noted, "[a] judge shall disqualify himself or herself in a proceeding in which a judge's impartiality might reasonably be questioned . . . ." Section 3E(1). "Subsections (a)-(h) of Section 3E(1) outline mandatory recusal situations." CJE Opinion 2006-1. If recusal is not mandatory under one of those subsections, "the judge ultimately has the obligation of determining whether recusal is the correct course of action." Id. This determination "necessarily involve[s] fact-finding by the judge" and the Committee is reluctant to consider on a case-by-case basis "whether disqualification was called for based . . . on a concern that [the judge's] impartiality might reasonably be questioned." CJE Opinion 95-5. "In Lena v. Commonwealth, 369 Mass. 571 (1976), the Supreme Judicial Court provided guidelines for the consideration of recusal. That case's two-part test has a subjective and an objective component." CJE Opinion 2004-9; see CJE Opinion 2004-10 ("The standard for determining whether a judge should disqualify himself or herself from hearing a matter is both subjective and objective.").
First, the judge "should . . . consult his or her own emotions and conscience." CJE Opinion 2004-9. "If the judge determines subjectively that he or she is not impartial for any reason, . . . then it is his or her duty to disclose and disqualify." CJE Opinion 2004-10. The Committee is "unable to advise you on the subjective aspect of the Lena test." CJE Opinion 2004-1.(5)
Second, "[i]f the judge believes subjectively that he or she can be impartial, then the facts need to be examined objectively[,]" CJE Opinion 2004-10, thus the judge must "attempt an objective appraisal of whether participating in the proceeding would create the appearance that his or her impartiality might reasonably be questioned." CJE Opinion 2004-9. Stated differently, you must consider whether an objective, disinterested observer, informed of the relevant facts, might reasonably question your impartiality when presiding over cases in which your former law partner and current tenant was the mediator. E.g., id.; CJE Opinion 2002-17; CJE Opinion 96-3.
Although application of the objective test "call[s] for an exercise of judgment that this Committee [cannot] make for the judge[,]" the Committee notes that it has previously opined that, "in the generality of cases, we see no objective reason for a judge to disqualify herself from sitting on a case that one of the judge's tenants mediated." CJE Opinion 98-19. That notwithstanding, among the factors for you to consider in applying this objective test include "the length of your association with the [A]ttorney; the time that has passed since that association ended; and any ongoing social relationship with the [A]ttorney." E.g., CJE Opinion 95-6. Additionally, you should consider the frequency with which cases the Attorney has mediated come before you, and "the culture of the legal community where you preside" such that your former association with the Attorney and his current tenancy with you is or "will become known to local practitioners[.]" E.g., CJE Opinion 2004-9.
Accordingly, "you must be the arbiter and decide whether you believe that" the Attorney's status as your former partner and/or his status as your current tenant require your recusal from cases in which he has served as a mediator.(6) See CJE Opinion 2006-1.
C. Knowledge of Attorney's Involvement and Disclosure
Finally, assuming that you decide that you must disqualify yourself from cases in which the Attorney has served as a mediator, you ask whether you or court personnel must take it upon yourselves to require parties and attorneys to disclose the Attorney's involvement. See, e.g., CJE Opinion 2006-1 (pointing out "dynamic tension" that exists in Code between provisions that suggest that judge should not be proactive in some respects, and Code's presumption "that judges will take reasonable steps to acquire the information to determine if a Code violation is likely"). The Committee believes that, regardless of the conclusion you reach after performing the two-prong
Your decision to recuse yourself from those matters in which you discover the Attorney's involvement, however, does trigger the Code's remittal provision. Under that section, you may "disclose on the record the basis of [your] disqualification and ask the parties and their lawyers to consider, out of [your] presence . . ., whether to waive disqualification." Section 3F. If the parties and attorneys "all agree that [you] should not be disqualified, [you] may participate in the proceeding." Id.
In sum, the Code does not mandate your recusal from cases in which the Attorney has served as a mediator in any of the categories you describe unless the case before you was one that arose during your association with the Attorney. That notwithstanding, the Committee advises you to perform the two-prong test set out in Lena v. Commonwealth to determine whether your impartiality might reasonably be questioned if you hear cases in which the Attorney served as a mediator. Regardless of the outcome of this test, you need not be proactive in ascertaining the Attorney's involvement beyond determining whether his name appears as mediator in the settlement agreement. If, upon conducting this test, you do conclude that you must recuse yourself from those cases in which the Attorney has served as a mediator, you may disclose on the record the basis for your disqualification and enable the parties and attorneys to waive your disqualification.
1. Before requesting this formal opinion, you sought and were given informal advice from this Committee that was based solely on the attorney's status as your tenant.
2. You cite to G.L. c. 233, § 23C, which renders confidential and not subject to disclosure "[a]ll memoranda, and other work product prepared by a mediator and a mediator's case files . . . [and] [a]ny communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person . . . ." The Committee notes that the statute defines "mediator" as "a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body." G.L. c. 233, § 23C. Presumably, the Attorney is a mediator within this statutory definition.
3. If the Attorney refers the parties to an attorney, he is not acting as a lawyer. See, e.g., CJE Opinion 95-5 (stating that referring a party elsewhere "does not constitute `serv[ice] . . . as a lawyer'" (ellipses and first alteration in original)).
4. Your letter suggests that, in the second stage of the conciliation process, the Attorney may engage in lawyering by giving the parties his opinion of the likely outcomes if they litigate their case. See, e.g., CJE Opinion 95-5. The Attorney, however, is a volunteer and therefore has no financial interest in the outcome of the case.
Additionally, while you write that the Attorney may assist the parties in preparing their pleadings in the "Private-Party" category of mediation, you state that once the case comes before the court, any financial interest the Attorney might have had no longer exists.
5. Although you point out in your letter that the Attorney does not appear before you in cases in which he serves as an attorney, the Committee cannot infer that you have already performed the subjective prong of the test because you expressly state that the Attorney refrains from appearing before you in accordance with CJE Opinion 93-3, where the Committee advised a judge to recuse himself "from all contested matters in which one of [his] tenants represents a party . . . ." Contra CJE Opinion 2004-1 ("It appears from your letter to the committee that you have already engaged in the first part of the . . . analysis, and you have `consult[ed] [your] own emotions and conscience.'" (alterations in original)).
6. If you determine that the Attorney's status as your current tenant requires you to recuse yourself from cases in which the Attorney has served as a mediator, frequent recusals may require you to divest yourself of the rental property or not to renew the Attorney's lease. See, e.g., 93-3 (instructing judge to "be mindful that if a substantial number of situations arise wherein recusal is required as a result of [attorneys' tenancies], then . . . . you should not renew the leases of the attorney/tenants in question"). On this point, the Committee directs your attention to Section 4D(1), which requires a judge to "refrain from financial and business dealings . . . that may involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves[;]" and to Section 4D(4) which requires a judge to "divest himself or herself of . . . financial interests that might require frequent disqualification."