Teaching mediation ethics has its good points and bad points. The good is that I have been required to learn the subject matter in depth; the bad is that oftentimes in an actual mediation I am cognizant (or more so) of ethical issues which may escape the (full?) attention of counsel. Some recent mediations made this clear. Every once in awhile, I will schedule several mediations at once because the same plaintiff’s counsel may have several pending cases against the same defendant. That is, in one day, the parties will attempt to resolve multiple cases at once. Usually this does not pose an issue as we discuss each case separately such there are separate and discrete demands and offers made on each case. But… suppose the defendant decides to lump all of the cases together and simply offers a total sum to be split among the cases, leaving it to plaintiffs’ counsel to determine the actual allocation among the several plaintiffs. This poses a definite and difficult issue, namely a conflict of interest.
As we all learned early on, an attorney can not favor one client over another. An indeed, Rule 1.8.7 of the California Rules of Professional Conduct provides: (a) A lawyer who represents two or more clients shall not enter into an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregate agreement as to guilty or nolo contendere pleas, unless each client gives informed written consent. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person* in the settlement. (b) This rule does not apply to class action settlements subject to court approval. And “informed written consent” means that the following is obtained in writing: “Informed consent” means a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct. (California Rule of Professional Conduct Rule 1.01(e) and (e-1).)
So, two dilemmas arise: the first is that the attorney, if she is willing to be the decider of how to divide a global sum (Not all plaintiff’s counsel are willing to do this!), is she willing to tell each client what is the total sum involved and then that client’s particular portion? Obviously, when the client learns about the total amount, she will want more than what is being apportioned to her. But the more pressing dilemma occurs when counsel is not aware of this rule of professional conduct. As a mediator, I should not be practicing law or otherwise advising on ethics but at the same time, I can provide “information” that I have acquired through training and experience. I also may have a duty to withdraw or terminate the mediation if I believe that something improper is going on.
So, what do I do? Tell the plaintiff’s attorney about this rule of professional conduct? Stay silent and carry on with the mediation? Or terminate or withdraw from the mediation so that I am not a participant in what may be improper conduct? Or, some other alternative such as suggesting that the attorney consult others or research the rules of professional conduct? What should I do? That is the question I will ask my mediation ethics students. But, in the meanwhile, what do you think I should do? And what would you do? … Just something to think about.