Rule 1.12 Former Judge or Arbitrator, Mediator, or Other Third-Party Neutral.

Comment

This Rule generally parallels Rule 1.11. The term “personally and substantially” signifies that a judge who was a member of a multi-member court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term “adjudicative officer” includes such officials as judges pro tempore, referees, special masters, hearing officers and other para-judicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the former Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not “act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto.” Although phrased differently from this Rule, those rules correspond in meaning.

Comparison with Former Alabama Code of Professional Responsibility

Paragraph (a) is substantially similar to DR 9-101(A), which provided that a lawyer “shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.” Paragraph (a) differs, however, in that it is broader in scope and states more specifically the persons to whom it applies. There was no counterpart in the former Code to paragraphs (b), (c) or (d).

With regard to arbitrators, EC 5-20 stated that “a lawyer [who] has undertaken to act as an impartial arbitrator or mediator, ... should not thereafter represent in the dispute any of the parties involved.” DR 9-101(A) did not permit a waiver of the disqualification applied to former judges by consent of the parties. However, DR 5105(C) was similar in effect and could be construed to permit waiver.

Note from the reporter of decisions: The order amending Rule 1.8, the Comment to Rule 1.8, Rule 1.10(a), the Comment to Rule 1.10, Rule 1.12, Rule 1.14, the Comment to Rule 1.14, the Comment to Rule 3.2, Rule 3.6, the Comment to Rule 3.7, Rule 3.9, and Rule 4.4 is published in that volume of Alabama Reporter that contains Alabama cases from 983 So.2d.