Mediation is a serious engagement and the parties should have a clear understanding of the mediator’s true and correct credentials, and not a misunderstanding about them. Accordingly, it should be ensured from the moment the mediation is solicited— which can also mean from from the moment of an attorney, on behalf of clients, considering the disbarred attorney as mediator for the clients— that no attorney or party is ever under the impression, possibly even just arising out of mere implication, that the mediator additionally holds an attorney license credential.
The disbarred attorney mediator should clearly and distinctly express having been disbarred in writing to all attorneys, and should direct the attorneys to inform their clients of this disbarred status before being hired. Once in person, to ensure no games of slight of hand are taking place and avoid any misperceptions by parties, the mediator should have the parties sign an agreement of understanding that the mediator was disbarred. These are simple steps the mediator can take to ensure no one asks to set aside the MSA down the road on such bases as fraud, fraud in the inducement, deception, or for other concerns. Attorneys aware of the disbarment should insist on this level of disclosure as well to protect themselves and show candor to the client.
Attorneys are fiduciaries of clients. Clients depend on attorneys to keep them fully informed. Attorneys engaging in careful practice who wish to avoid ire of former clients should cover themselves from possible blame of leading the client down a path the client later regrets. Happy clients on the day of mediation who later have MSA remorse may make a beeline to complain about the attorney’s failure to mention the mediator selected was disbarred. These happy clients long after the mediation may also lose respect for the attorney were the client to later find out about the mediator having been disbarred and noting the attorney never mentioned this. Even clients sometimes do not remember, so having it in writing is a safer policy for the attorney who proposes going ahead with a disbarred attorney.
The first part of the question, “Whether a disbarred attorney can serve as mediator of a litigation dispute?” leads to a context-driven nuanced inquiry, and is not as simple as “Can Mr. John Jones high school graduate sit through a formal 40-hour mediation training, get a certificate, and be a mediator without formal legal training?” While technically, John Jones ‘can’ mediate a litigation dispute, no one thinks that the John Jones of that scenario has attorney credentialing or to inquire whether John Jones was once an attorney and now is disbarred.
While a disbarred attorney is ordered to not hold themselves out as an attorney in any way, as such, the non-attorney can mediate. There are non-attorney mediators all around the world. However, that is not the beginning and the end of the inquiry. What are steps to protect the client? What about protecting the attorneys and, yes, the mediator too.
In a mediation context, clients usually look to and trust more so those with credentials. A client having any perception that the mediator happens to also be a licensed attorney necessarily boosts confidence in the thoughts, suggestions, and credibility of the mediator in the mind of the client as relates to resolving the litigation. It is not uncommon for a mediator to speak to his or her credentials to gain credibility with the attorneys and parties. But those credentials should not be embellished or expressed in a way, such as through ambiguities, that mislead unwitting parties.
To ensure candor and full understanding by those who would be then entrusting privacies and payment to the mediator, the disbarred attorney should make the status of disbarment crystal clear to all clients or prospective clients who in any way might believe, or have been led to even an inkling of belief that the mediator has ‘attorney’ credentialing. This is true in person, in writings, and online.
Confusion of the clients (or even of the attorneys) could come about innocently enough even without the mediator or the attorney leading the client to the misunderstanding. The client may Google the mediator’s name and only read some of what is found. (The attorney might do the same too). If the mediator who is Googled was never an attorney, then there’s zero likelihood of a misunderstanding that the mediator has an attorney credential.
Members of the public start with a presumption that one who has the word “attorney” or “lawyer” next to their name is, indeed, licensed; that’s a presumption which should be affirmatively overcome through candor. Not everyone reads everything they find and, given confidence bias, the clients reading about the mediator online may quickly conclude the mediator has an attorney credential and not read further.
For a disbarred attorney, however, there very most likely is media about the disbarred attorney that imply the disbarred attorney is disbarred, and also media that suggest or imply (possibly unless looking really carefully) that the non-attorney is actually licensed. Some of this is outside the control of the disbarred attorney. Search engines and industry websites may state or imply the disbarred attorney holds a license. These online resources sometimes populate with information that goes without review or that is not fully informed.
Sometimes the media is in the custody, care, and control of the disbarred attorney. If, for example, the LinkedIn profile of the disbarred attorney says “practiced law from 2000 to 2010” and then 2011 – present says “Mediator”, that implies the mediator has an attorney credential even though mediation is the primary occupation. Such a profile can lead the general public to believe the disbarred attorney still is an attorney but focusing on mediation as a field of professional practice. But unlike the general public, that profile, (CV, or resume) influences the perceptions and conclusions about the mediator by attorneys and clients who are attending or who may attend mediation.
Often lay people do not know to check the State Bar of Texas attorney registry to see for sure the status of the licensure. But attorneys should verify this status on behalf of clients and inform the clients of the findings.
As such, for attorneys seeking to protect themselves and their clients, these are reasonable steps as a fiduciary for the client:
1) Run the prospective mediator’s name on the State Bar’s website. This may mean viewing the expanded profile of the disbarred attorney and scrolling down to see if any disciplinary history is .pdf attached to the disbarred attorney’s profile.
2) Carefully review all disciplinary history, if any, of the prospective mediator, including any prior history such as suspensions. Search the Bar Journal for details of the prior discipline, if any. This search can be done via Google search of the prospective mediator’s name cross-referenced to such terms as “suspension” or “Texas Bar Journal.”
3) Furnish all of the disciplinary history in writing to the clients.
4) Ask the clients to sign off on being told the prospective mediator is disbarred.
Attorneys cannot know why the disbarred attorney was disbarred without doing the follow-up work. Even where the disbarred attorney discloses being disbarred, attorneys on behalf of clients should not simply take the mediator’s word as to the basis for the disbarment.
Another reason to be cautious is that attorney licenses don’t simply up and vanish without a serious set of allegations that become facts found by Grievance Committee or Court. The attorney disciplined either failed to respond to the complaint or the response was inadequate to persuade the finder of fact.
An attorney facing discipline is provided ample notices including notice of the complaint, a just cause finding, the right to elect that the case is tried before a Grievance Committee or District Court, the service of the discipline suit, notice of any hearing, and notice of any judgment entered. The respondent attorney receives notice of any disciplinary lawsuit — whether through having signed the green card personally, having been personally served, or through valid substituted service.
If the disbarred attorney lost licensure due to deceit or dishonesty, such as theft or fraud, for example, then that opens up a question about whether the attorneys leading clients to mediate with the disbarred attorney are truly looking out for the protection of their client’s best interest. One concern is protecting the client from misuse of the information that might be shared with the mediator during mediation. Another is assuring the respect and protection of confidential information in general. There is a perception of trust in those who happen to also be attorneys-at-law that such persons in any setting will be extra careful about the protection of private information. But a third concern is the chance of a former attorney (disbarred for dishonesty) then being a dishonest mediator who goes about accepting perks, kickbacks, or excess pecuniary inducement (i.e. a bribe) from one side in exchange for influencing the outcome with bias.
There need not be an attorney-client relationship for there to be a misunderstanding by the layperson about the level of care by the mediator that the client perceives to happen to also hold an attorney license. The “mediator” credential, while important, is not superfluous to the attorney credential because of the way in which the public views those who happen to also be licensed as an attorney. Were a study done asking 100 people at the local mall on a scale of 1-10, 10 being the most and 1 being the least, these three scenarios, this writer believes the perception of security of information by the “mediator” would reflect a lower numerical result than the perception of security by an attorney and a lower numerical result than that of the mediator perceived to also happen to have an attorney license:
i. “How careful do you believe an attorney would be with confidential information shared with the attorney at mediation?”;
ii. “How careful do you believe a mediator will be with confidential information shared during mediation?”; and
iii. “How careful do you believe a mediator would be with your confidential information shared during mediation if you also believe the mediator is a licensed attorney, even though the mediator is not serving as attorney at the mediation?”
This writer will leave it to the reader to determine how trustworthy this prospective study’s pool will find the “disbarred attorney mediator,” were that category included too.
In sum, the question is more nuanced than whether, technically speaking, the mediator who happens to be disbarred may mediate; the underlying question that the disbarred attorney and the client’s attorney should be asking is whether the client is meaningfully, verifiably informed and whether the attorney did his or her due diligence in advance of informing the client.
Finally, and before proceeding with the mediation, contact your malpractice carrier and inform them of your plan to use a disbarred attorney. It is not enough, alone, to say the attorney is disbarred. Meaningfully inform the carrier to make an informed decision about what factors you are considering by providing the carrier with all the due diligence on the disbarred attorney. Let the carrier consider all the factors. Let them say in writing the policy allows you to proceed and that you would be covered. The last thing an attorney needs, if something goes awry down the road, is the carrier saying the decision to use a disbarred attorney and, even worse, the decision to not do thorough due diligence on the disbarred attorney means the claim will be not be covered. Just imagine what happens when the someone disbarred for dishonesty turns out to use the information gained as a mediator during the mediation for a dishonest purpose.
Full candor and formal disclosure are the best ways to ensure no misunderstandings and that the clients make an informed decision in advance of the mediation. These are not just steps that protect the client, but they also protect the mediator from being said to have misled the consumer, and happen to protect the attorneys advising the clients as well.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.