Concept
Informing Unrepresented Parties
Lawyer as arbitrator, mediator, or other third-party neutral
Informing Unrepresented Parties
Rule 2.4(b) gives a lawyer who serves as a third-party neutral two duties of unequal strength. The first sentence requires her to inform unrepresented parties that she is not representing them. The second applies only when she knows or reasonably should know that a party misunderstands her role, and it requires her to explain how a neutral's role differs from the role of a lawyer who represents a client.1
Both duties answer the signal a law license sends. People tend to picture lawyers as zealous and confidential representatives of their clients, so a participant may assume that a lawyer-mediator or lawyer-arbitrator will give advice with special solicitude for that participant's interests, or will carefully protect whatever the participant shares.2 Nonlawyers serve as neutrals too, and the law permits anyone to mediate without a license.3 A lawyer in the role, though, is more likely to find that participants, particularly those without counsel, are confused about what she is doing there.4
The commentary to the rule locates the problem in the gap between the two roles. Lawyers serving as neutrals may face difficulties that nonlawyers do not, because a neutral's role differs from a client representative's, and the potential for confusion is significant when the parties are unrepresented.5 That observation explains why subdivision (b) is aimed at those parties: a participant with no lawyer of her own has no one on her side to ask what the neutral is for.
The baseline duty in the first sentence comes first below. The duty that depends on what the neutral perceives follows, and the unit closes by setting both against Rule 4.3, the parallel rule for a lawyer who represents a client.
Disclosing Non-Representation
The first sentence of Rule 2.4(b) states the duty in a single clause: a lawyer serving as a third-party neutral “shall inform unrepresented parties that the lawyer is not representing them.”6 Three features of that clause control it. Shall makes the disclosure mandatory. The object, unrepresented parties, ties the trigger to the absence of counsel. And the clause carries no knowledge qualifier, so it never asks whether the lawyer thinks anyone is confused.
The missing qualifier makes the duty automatic, and the second sentence shows the contrast: it applies only when the lawyer knows or reasonably should know that a party misunderstands her role.7 A neutral who meets an unrepresented party must therefore give the first-sentence disclosure even when the party seems at ease and the lawyer suspects no problem. The structure fits the problem. A participant who assumes the lawyer is looking out for her will seldom say so, and a duty that waited for the lawyer to detect confusion would fail in the cases it exists for. A one-sentence statement, by comparison, costs the neutral almost nothing.
The trigger tracks the commentary's concern, which is that the potential for confusion is significant when the parties are unrepresented.8 Beyond the baseline, the extent of disclosure depends on the particular parties, the subject matter of the proceeding, and the features of the process selected.9 The first sentence sets the floor, and how much more a given party needs is the work of the second.
The two sentences ask different questions. The first asks only whether a party lacks a lawyer. The second asks whether the neutral knows or should know that a party misunderstands her role. Candidates err by making the first sentence wait for apparent confusion, which adds a condition its text does not contain.
Correcting Role Misunderstanding
The second sentence of Rule 2.4(b) asks the neutral to do more than disclose; it asks her to explain. When the lawyer knows or reasonably should know that a party does not understand her role in the matter, she must explain the difference between a third-party neutral's role and a lawyer's role in representing a client.11 A bare disclosure can be heard and still misunderstood. A participant may be told that the lawyer is not representing her and still expect advice given with special solicitude for her interests.12 The second sentence closes that gap once the neutral has reason to think the first did not land.
The words reasonably should know measure the neutral against what a reasonable lawyer in her position would have noticed, not against what she in fact noticed.13 That matters because role confusion shows itself in behavior, not in announcements. The beliefs the sources describe are that the lawyer will advise with special solicitude for the participant and that she will carefully protect what the participant shares.14 Signs of those beliefs include asking the neutral what the participant ought to do, treating her opinions as advice, and speaking with the openness one reserves for one's own lawyer. If the duty required proof that the neutral actually realized a participant was confused, she could avoid it by not paying attention. The objective standard closes that exit. It also makes the duty a continuing one, since the signs may surface in the third hour of a session and not in the first minute.
How much the neutral must say depends on who is listening. The extent of the disclosure turns on the particular parties, the subject matter of the proceeding, and the features of the process selected.15 The content of the explanation is fixed by the rule: the difference between the neutral's role and the role of one who represents a client.16 A neutral who fits the explanation to the participant avoids two failures, a stock script that buries a sophisticated participant in warnings and a one-line formula that leaves a novice as confused as before. In either case the aim is to leave the participant free of the two assumptions above.
A participant who asks the mediator for legal advice has probably revealed such a misunderstanding. How far a lawyer-mediator may go in answering is a separate question, taken up in the later discussion of legal advice by mediators.
The opening statement was the same in both mediations, so what changed the result was what each participant said and did afterward. Conduct that shows a mistaken belief supplies the knowledge the second sentence requires, and a clear statement of understanding, with nothing to the contrary, does not.
Keep the two sentences apart. The first is owed to every unrepresented party and has no knowledge qualifier. The second arises only from actual or constructive knowledge of confusion, and it can arise after the first has been satisfied, because hearing a statement is different from understanding it. The second sentence also speaks of “a party,” not an unrepresented party, so its text does not confine it to people without counsel.17 The commentary's concern is nonetheless greatest where the parties are unrepresented.18 Candidates err by treating the explanation as owed to every unrepresented party, which erases the knowledge trigger, or by treating the opening disclosure as the end of the neutral's duty, which ignores it.
Contrast With Rule 4.3
Rule 2.4(b) is easiest to retain beside its counterpart for advocates. Rule 4.3 governs a lawyer who represents a client and deals with someone who has no lawyer. It directs the lawyer not to suggest or imply that the lawyer is disinterested, and when the lawyer knows or reasonably should know that the unrepresented person misunderstands her role, it requires reasonable efforts to correct the misunderstanding.20 Rule 2.4(b), in contrast, governs a lawyer who serves as a third-party neutral and represents no one there.21
Both rules answer one vulnerability, which is that a person without counsel may read a law license as a sign of authority. Comment 1 to Rule 4.3 explains that an unrepresented person, particularly one inexperienced with legal matters, “might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.”22 The same condition drives the neutral's duty, because a participant without counsel is the one most likely to be confused about the lawyer's role.23 Each rule therefore puts the burden of clearing up the confusion on the lawyer, who knows which role she occupies.
The rules part ways on the direction of the mistake. A person facing an advocate may take the lawyer for a disinterested authority, and the rule answers that mistake. The lawyer must not suggest or imply disinterest, and if the person still fails to appreciate that the lawyer is a partisan advocate, the lawyer must clarify matters even if she did nothing to create the misunderstanding.24 A party facing a neutral may make the opposite mistake and take the lawyer for a zealous, confidential representative who will advise with special solicitude for that party.25 In short, Rule 4.3 corrects an assumption of neutrality, and Rule 2.4(b) corrects an assumption of loyalty.
The forms differ accordingly. Rule 4.3 opens with a restraint on what the lawyer may suggest and adds a correction duty triggered by what she knows or should know. Rule 2.4(b) opens with an affirmative statement owed to every unrepresented party and adds an explanation triggered by the same knowledge standard.26
A stem with a lawyer, two disputants, and one missing lawyer can invite either rule, because the lawyer in that scene may be an advocate or a facilitator. The setting does not choose between them. The question that sorts them is whether the lawyer represents anyone in the matter.
One mediation can engage both rules. Counsel for one party who deals with an unrepresented opponent answers to Rule 4.3, while the lawyer-mediator running the session answers to Rule 2.4(b) as to that same unrepresented party.27 Candidates err by applying Rule 2.4(b) to any lawyer who helps two sides settle, or by applying Rule 4.3 to a neutral who has no client at all.