Article Summary: Reporting Professional Misconduct in the Mediation Context
Arthur Greenbaum, Professor at The Ohio State University Moritz College of Law, examines attorney reporting of professional misconduct in The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform. Greenbaum begins by reviewing the arguments for a mandatory reporting rule and then proposes a framework for future drafters to use in drafting a more effective reporting rule.
ABA Model Rule of Professional Conduct 8.3 states that:
A lawyer having knowledge that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
According to Greenbaum, one of the major problems with this rule is that it is ambiguous. The lawyer must interpret what constitutes "knowledge," determine how significant the violation is, decide to whom reports of violations should be directed, and assess the timeframe in which reports should be made. These ambiguities may prevent attorneys from fully understanding when they have a duty to report.
These ambiguities create problems not only for lawyers, but also for lawyer-mediators and arbitrators. In his article, Greenbaum considers whether an exception to the duty to report should be recognized when a lawyer serves as a mediator or arbitrator. In an effort to determine the appropriateness of such an exception, Greenbaum balances the need to ensure confidentiality with the obligation of lawyer-mediators and arbitrators to report misconduct. Greenbaum contends that although confidentiality is important to both mediation and arbitration, the reasons underlying the need for confidentiality in each of these contexts differ. In mediation, confidentiality is necessary to encourage participants to make candid statements. In arbitration, by contrast, confidentiality protects the parties' privacy. According to Greenbaum, "[d]rafters may find the process values in mediation more important to protect than the privacy expectations in arbitration."In addition, Greenbaum contends that another distinction exists between arbitration and mediation. In mediation, the lawyer-mediator serves as a facilitator, a special role of trust. In arbitration, the arbitrator plays a more evaluative role, akin to that of a judge to whom the reporting obligation clearly attaches. According to Greenbaum, "[t]hese distinctions help justify those ethics opinions that subject the attorney/arbitrator to the duty to report."
In an effort to evaluate whether lawyer-mediators should be subject to the duty to report, Greenbaum looks to the context in which the attorney misconduct arises, noting that confidentiality concerns are highest when misconduct is that of a lawyer who is a party to the mediation and the misconduct is the subject of the proceeding itself, such as in malpractice or fee mediations. In such cases confidentiality may be necessary to induce the parties to participate fully in the proceedings. When the misconduct of the lawyer/party comes out in the mediation but is not the subject of the mediation, it is less likely that the lawyer's participation will be affected by the possibility that "professional ramifications" could result from disclosure of misconduct. Finally, where the lawyer misconduct is that of a party's counsel or a presiding official in mediation, Greenbaum suggests that reporting should be required because requiring such reporting will make those attorneys more likely to comply with the ethical rules. Additionally, in this context, the limited breach of confidentiality with respect to the proceeding is unlikely to deter parties from participating in mediation.
Rather than prohibit reporting of misconduct occurring during mediation because of confidentiality concerns, Greenbaum's approach balances the need to protect confidentiality with the need to report misconduct. The potential for reporting such misconduct may induce attorneys, who may be tempted to sway from their ethical obligations, to comply with ethical rules, ultimately promoting the integrity of the mediation process.
Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, can be found in 16 Geo. J. Legal Ethics 259 (2003). Reprinted with permission of the publisher, Georgetown Journal of Legal Ethics © 2003