You have asked the Committee to render an opinion as to whether, after dealing with a married couple seeking divorce in an informal mediation process where the parties try to resolve most issues between them, you may represent either of the parties against the other in resolving open issues.
The Committee is of the opinion that you may not represent either party after engaging in the mediation process, whether or not the process fails to produce a resolution of all issues by agreement.
Professional guidance committees and bar associations across the country have issued opinions disapproving of the practice of an attorney who acted as a mediator then representing one of the parties in a subsequent adversarial divorce. Some states instruct their lawyers to never represent one of the parties to an unsuccessful mediation in a subsequent divorce if the lawyer has served as a mediator. See Connecticut Bar Association Committee on Professional Ethics, Formal Op. 33 (1982) (if lawyer acts as mediator or arbitrator between divorcing spouses, lawyer cannot represent either in later divorce action); Florida Bar Association, Professional Ethics Committee, Op. 8 (1986) (lawyer may serve as divorce mediator for two clients if they give informed consent, but must withdraw if parties come in conflict); Kansas Bar Association, Professional Ethics Committee, Op. 3 (1983) (attorney can act as mediator in divorce, but cannot represent either spouse if disagreement arises); New Jersey Advisory Committee on Professional Ethics, Op. 521 (1983) (lawyer acting as divorce mediator cannot represent either spouse in later divorce); New York City Bar Association, Committee on Professional and Judicial Ethics, Op. 8023 (1981) (lawyer who acted as mediator may not represent either spouse in subsequent divorce); North Carolina State Bar Association, Ethics Committee, Op. 298 (1981) (lawyer not representing one or the other spouse in mediation, but both, must withdraw if parties become adverse); Vermont Bar Association, Committee on Professional Responsibility, Op. 12 (1980) (lawyer who acted as mediator between spouses cannot represent either in divorce); and Virginia State Bar Association, Standing Committee on Legal Ethics, Op. 544 (1984) (lawyer who acts as divorce mediator cannot represent either in divorce if mediation fails, even if divorce is uncontested).
Some states even require a lawyer to tell the spouses before beginning mediation that he or she cannot represent either spouse if an adversarial divorce proceeding commences. See Massachusetts Bar Association, Ethics Committee, Op. 3 (1985) (committee recommends lawyer advise spouses he will not represent either in court if mediation fails); New Hampshire Bar Association, Ethics Committee, Op. 1989-90/15 (1990) (lawyer may serve as divorce mediator if he or she tells spouses that lawyer/mediator will not represent either in court).
Furthermore, the Supreme Court of Vermont has voiced its disapproval of a lawyer who acted as a divorce mediator questioning witnesses at a divorce hearing, even though the lawyer purported to be acting only as the drafter of a proposed stipulation and not as attorney for either spouse. Barbour v. Barbour, 505 A.2d 1217, 1220-21 (Vt. 1986). The court stated, [it] is not here necessary to determine at what stage of the mediation process the lawyer must terminate his relationship. Suffice it to say that it must not carry over into the courtroom. Id. at 1221.
Although you inform spouses that you represent neither during the mediation process, your close relationship with both spouses during the mediation process creates a non-waivable conflict of interest, as defined in Rule 1.7(b), if you represent one spouse in the subsequent divorce. If the mediation seems near failure, but one spouse seems impressed by the lawyer's skills, the lawyer may be torn between the duty to impartially explain the law to both spouses and the possibility of bringing in a new client. This prohibition under 1.7(b) extends even to your present practice of filing a divorce on behalf of one party chosen by the couple, which practice should be discontinued.
In addition, as the conversations during the mediation process, as described by you, do not seem to qualify for the attorney-client privilege, a lawyer-mediator may be required to testify about admissions made to him by a spouse during the mediation process, thereby creating a problem under Rule 3.7. See Commonwealth v. Willis, 552 A.2d 682, 697 (Pa. Super. 1988) (attorney should ordinarily retire from advocacy in a case as soon as it becomes foreseeable that he or she may be needed to testify for his or her client...).
Finally, The American Bar Association has promulgated Standards of Practice for Divorce and Family Mediation. Standard VIB provides, The mediator shall inform the participants that the mediator cannot represent either or both of them in a marital dissolution. Thus, for a variety of reasons, your proposed course of action is not appropriate.