Originally from Dispute Resolution Journal

Preview Page

“If an attorney is under an ethical rule to effectively serve the client, is he or she not also under a duty to
educate the client about ADR?” Gerald Phillips outlines the benefits of suggesting alternatives to
litigation—such as mediation and arbitration—to clients, and probing further, investigates the question
of whether attorneys should be disciplined if they fail to inform clients about the availability of ADR
processes.

There is a continuing debate among lawyers as to whether the failure to consult with the client about
the availability of ADR to resolve disputes would be improper, constituting malpractice and subjecting
the attorney to civil liability. Could the failure to consult with the client be held to be unethical, which
may subject the attorney to discipline? Many attorneys believe that the ABA Model Rules of
Professional Conduct may require that the attorney consult with the client as to the availability of
alternative dispute resolution. Among the sections of the model rules cited is 1.4(b) that requires a
lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.

to be unethical, which may subject the attorney to discipline? Many attorneys believe that the ABA
Model Rules of Professional Conduct may require that the attorney consult with the client as to the
availability of alternative dispute resolution. Among the sections of the model rules cited is 1.4(b) that
requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.