Does a Lawyer Have a Duty to Advise About ADR?
Lawyers in some states have an explicit duty to advise clients about alternative dispute resolution processes. States such as Colorado, Texas, Georgia, Hawaii, Arkansas, and California have enacted rules that deal with this duty. For example, a Georgia rule states: A lawyer as advisor has a duty to advise the client as to various forms of dispute resolution. When a matter is likely to involve litigation, a lawyer has a duty to inform the client of forms of dispute resolution which might constitute reasonable alternatives to litigation. The Georgia rule is especially broad, because it creates a duty both in the context of litigation and counseling. To some this may seem too broad, if the rule has implications for bar discipline or attorney liability. In any event, it would be hard to dispute these two basic propositions, however, as aspirational goals: Litigation counsel should thoughtfully assess the viability of mediation, arbitration, and a variety of other ADR processes (in addition
