A Post-Conference Reflection on Separate Ethical Aspirations for ADR's Not-So-Separate Practitioners

Authors

John Q. Barrett, St. John's University School of LawFollow

Document Type

Article

Publication Title

South Texas Law Review

Publication Date

1997

Volume

38

First Page

705

Abstract

At "The Lawyer's Duties and Responsibilities in Dispute Resolution" Symposium at South Texas College of Law, Oct. 25, 1996, a central topic of discussion was ADR's ethical separateness. There was a shared sense that ADR providers and practitioners confront a range of ethical issues that differ from those that confront non-ADR lawyers. On this view, because rules of professional responsibility are geared toward more adversarial forms of legal practice, they at best provide no answers and may provide wrong answers to ethical questions that arise in ADR. One solution would be to create new, separate, "role-specific" ethics rules for ADR practitioners. This essay reflects some skepticism about the achievability and desirability of ADR separatism. Although ADR practices are conceptually distinguishable from more traditional forms of lawyering, ADR's legal practitioners are, and will remain, professionally indistinguishable from their supposed counterparts. Indeed, they are largely one and the same people. The proliferation of ADR forms throughout legal practice has created lawyers who sometimes play ADR roles and other times, often in the same practice settings, play more traditional lawyer roles. This inseparability of ADR lawyers from non-ADR lawyers generally means that, for as long as lawyers remain free to move into and out of traditional and ADR practice forms, creating separate ethical regulatory schemes for ADR practitioners will be extremely problematic.