Conflict of Duties: Mediation Confidentiality v. Fellow Attorney Misconduct

Most law firms avoid posting jobs on Indeed or LinkedIn due to high costs. Instead, they publish them on their own websites, bar association pages, and niche legal boards. LawCrossing finds these hidden jobs, giving you access to exclusive opportunities. Sign up now!

published April 07, 2012

By Harrison Barnes, CEO and Founder - BCG Attorney Search

While alternative dispute resolution processes have seen tremendous growth and support in the recent years, the lack of clear definitions on many fronts continue to plague attorneys engaged in such processes. One of the regions where this conflict is most painful is the conflict faced by attorneys serving as mediators in their balancing between mediation confidentiality and professional responsibility.

Even though most states have passed legislation mandating confidentiality for alternative dispute resolution and mediation processes, a large number of such rules work directly against rules of professional conduct that attorneys need to obey in reporting misconduct by fellow attorneys. Trying to decide between two mutually conflicting sets of obligations puts a mediating attorney in a fix, and the situation is quite common.

Mediation Confidentiality:

It is impossible for mediation to be effective without guarantees of confidentiality of discussions. Open negotiations and letting down guards to meet on common ground is impossible with the threat of someone turning witness in ensuing and subsequent litigation. Confidentiality also assures the role of the mediator as an unbiased third party. The mediator, not being an arbitrator, is nothing more than a catalyst, an unbiased advisor who moves ahead the mediation process to a logical outcome.

However, the attorney serving as a mediator is also witness to discussions and acts of fellow attorneys, which would be considered unethical, or outright as misconduct were the scales of attorney misconduct applied to mediation proceedings. Naturally, the stress on the mediator in not reporting the witnessing of such misconduct, and thereby running the risk of being construed as an accomplice or perpetrator in misconduct is substantial. Attorney disciplinary rules in most states are yet to address the issue with the importance needed. Coupled with this is a chain of decisions including NLRB v. Joseph Macaluso, Inc, where the court found that mediators cannot be asked to testify about the bargaining sessions they attended.

The Confusion:

The confusion stems originally from the varied and disparate meanings attributed to the term “confidentiality” and its application upon instant cases. The confusion escalates due to the lack of homogenous mediation rules in the country with almost every jurisdiction having their own statute concerning mediation proceedings.

National licensing or regulation of attorney-mediators are still at a nascent stage while in most states, rules of confidentiality find disparate applications according to evolving mediation statutes.

While the American Arbitration Association, the American Bar Association and the Society of Professionals in Dispute Resolution are trying to redress the situation by active pursuance of Model Standards of Conduct the application still falls short in addressing the conflicts felt by attorney mediators.

While evidence rules ‘recognize’ the ‘attorney-client’ relationships the extension of the protective umbrella to the cause of attorneys acting as mediators is yet to crystallize in definable forms of assurance.

About Harrison Barnes

No legal recruiter in the United States has placed more attorneys at top law firms across every practice area than Harrison Barnes. His unmatched expertise, industry connections, and proven placement strategies have made him the most influential legal career advisor for attorneys seeking success in Big Law, elite boutiques, mid-sized firms, small firms, firms in the largest and smallest markets, and in over 350 separate practice areas.

A Reach Unlike Any Other Legal Recruiter

Most legal recruiters focus only on placing attorneys in large markets or specific practice areas, but Harrison places attorneys at all levels, in all practice areas, and in all locations—from the most prestigious firms in New York, Los Angeles, and Washington, D.C., to small and mid-sized firms in rural markets. Every week, he successfully places attorneys not only in high-demand practice areas like corporate and litigation but also in niche and less commonly recruited areas such as:

Immigration law
Workers’ compensation
Insurance defense
Family law
Trusts & estates
Municipal law
And many more...

This breadth of placements is unheard of in the legal recruiting industry and is a testament to his extraordinary ability to connect attorneys with the right firms, regardless of market size or practice area.

Proven Success at All Levels

With over 25 years of experience, Harrison has successfully placed attorneys at over 1,000 law firms, including:

Top Am Law 100 firms such including Sullivan and Cromwell, and almost every AmLaw 100 and AmLaw 200 law firm.
Elite boutique firms with specialized practices
Mid-sized firms looking to expand their practice areas
Growing firms in small and rural markets

He has also placed hundreds of law firm partners and has worked on firm and practice area mergers, helping law firms strategically grow their teams.

Unmatched Commitment to Attorney Success – The Story of BCG Attorney Search

Harrison Barnes is not just the most effective legal recruiter in the country, he is also the founder of BCG Attorney Search, a recruiting powerhouse that has helped thousands of attorneys transform their careers. His vision for BCG goes beyond just job placement; it is built on a mission to provide attorneys with opportunities they would never have access to otherwise. Unlike traditional recruiting firms, BCG Attorney Search operates as a career partner, not just a placement service. The firm’s unparalleled resources, including a team of over 150 employees, enable it to offer customized job searches, direct outreach to firms, and market intelligence that no other legal recruiting service provides. Attorneys working with Harrison and BCG gain access to hidden opportunities, real-time insights on firm hiring trends, and guidance from a team that truly understands the legal market. You can read more about how BCG Attorney Search revolutionizes legal recruiting here: The Story of BCG Attorney Search and What We Do for You.

The Most Trusted Career Advisor for Attorneys

Harrison’s legal career insights are the most widely followed in the profession.

His articles on BCG Search alone are read by over 150,000 attorneys per month, making his guidance the most sought-after in the legal field. Read his latest insights here.
He has conducted hundreds of hours of career development webinars, available here: Harrison Barnes Webinar Replays.
His placement success is unmatched—see examples here: Harrison Barnes' Attorney Placements.
He has created numerous comprehensive career development courses, including BigLaw Breakthrough, designed to help attorneys land positions at elite law firms.

Submit Your Resume to Work with Harrison Barnes

If you are serious about advancing your legal career and want access to the most sought-after law firm opportunities, Harrison Barnes is the most powerful recruiter to have on your side.

Submit your resume today to start working with him: Submit Resume Here.

With an unmatched track record of success, a vast team of over 150 dedicated employees, and a reach into every market and practice area, Harrison Barnes is the recruiter who makes career transformations happen and has the talent and resources behind him to make this happen.

A Relentless Commitment to Attorney Success

Unlike most recruiters who work with only a narrow subset of attorneys, Harrison Barnes works with lawyers at all stages of their careers, from junior associates to senior partners, in every practice area imaginable. His placements are not limited to only those with "elite" credentials—he has helped thousands of attorneys, including those who thought it was impossible to move firms, find their next great opportunity.

Harrison’s work is backed by a team of over 150 professionals who work around the clock to uncover hidden job opportunities at law firms across the country. His team:

Finds and creates job openings that aren’t publicly listed, giving attorneys access to exclusive opportunities.
Works closely with candidates to ensure their resumes and applications stand out.
Provides ongoing guidance and career coaching to help attorneys navigate interviews, negotiations, and transitions successfully.

This level of dedicated support is unmatched in the legal recruiting industry.

A Legal Recruiter Who Changes Lives

Harrison believes that every attorney—no matter their background, law school, or previous experience—has the potential to find success in the right law firm environment. Many attorneys come to him feeling stuck in their careers, underpaid, or unsure of their next steps. Through his unique ability to identify the right opportunities, he helps attorneys transform their careers in ways they never thought possible.

He has worked with:

Attorneys making below-market salaries who went on to double or triple their earnings at new firms.
Senior attorneys who believed they were “too experienced” to make a move and found better roles with firms eager for their expertise.
Attorneys in small or remote markets who assumed they had no options—only to be placed at strong firms they never knew existed.
Partners looking for a better platform or more autonomy who successfully transitioned to firms where they could grow their practice.

For attorneys who think their options are limited, Harrison Barnes has proven time and time again that opportunities exist—often in places they never expected.

Submit Your Resume Today – Start Your Career Transformation

If you want to explore new career opportunities, Harrison Barnes and BCG Attorney Search are your best resources. Whether you are looking for a BigLaw position, a boutique firm, or a move to a better work environment, Harrison’s expertise will help you take control of your future.

? Submit Your Resume Here to get started with Harrison Barnes today.

Alternative Summary

Harrison is the founder of BCG Attorney Search and several companies in the legal employment space that collectively gets thousands of attorneys jobs each year. Harrison’s writings about attorney careers and placement attract millions of reads each year. Harrison is widely considered the most successful recruiter in the United States and personally places multiple attorneys most weeks. His articles on legal search and placement are read by attorneys, law students and others millions of times per year.

More about Harrison

About LawCrossing

LawCrossing has received tens of thousands of attorneys jobs and has been the leading legal job board in the United States for almost two decades. LawCrossing helps attorneys dramatically improve their careers by locating every legal job opening in the market. Unlike other job sites, LawCrossing consolidates every job in the legal market and posts jobs regardless of whether or not an employer is paying. LawCrossing takes your legal career seriously and understands the legal profession. For more information, please visit www.LawCrossing.com.

Gain an advantage in your legal job search. LawCrossing uncovers hidden positions that firms post on their own websites and industry-specific job boards—jobs that never appear on Indeed or LinkedIn. Don't miss out. Sign up now!

( 6 votes, average: 3.6 out of 5)

What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.

Understanding the thin line between Mediation and Arbitration

Exploring Mediation as an Alternative to Traditional Legal Disputes