There has been some controversy about whether attorneys should ethically be required to inform clients about the availability of mediation as an alternative to litigation. Many state ethical codes recommend that lawyers advise clients about mediation (and other appropriate ADR options). See, for example, the Maryland Lawyer’s Rules of Professional Conduct, specifically the comment to Rule 2.1 “…when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.” (Emphasis added).
Other states, such as Virginia, require lawyers to advise clients about the appropriateness and availability of ADR. See Virginia State Bar Professional Guidelines, Rule 1.2 Comment on Scope of Representation.
Recently the New York State Bar Association entered the debate over the expanding role of ADR; it referred back to the committee for further work and discussion, a proposal that would require lawyers to notify their clients of mediation as an alternative to litigation. The proposal was supported by the Bar Association’s Dispute Resolution Section, whose complete report is available here.
In my opinion, client interests generally are served best if the attorney provides advice on the full range of options. But is it malpractice or an ethical violation if they fail to do so?
What do you think? Should attorneys be required to advise clients about alternatives to litigation?