Rule 4-1.12 Client-Lawyer Relationship - Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

Comment

[1] This Rule 4-1.12 generally parallels Rule 4-1.11. The term "personally and substantially" signifies that a judge who was a member of a multimember 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. 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 4-1.11. The term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers, and other parajudicial officers and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model 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 4-1.12, those Canons correspond in meaning.

[2] Like former judges, lawyers who have served as arbitrators, mediators, or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule 4-1.12 forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Rule 4-1.0(e) and (b). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 4-2.4.

[3] Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 4-1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, Rule 4-1.12(c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of Rule 4-1.12 are met.

[4] Requirements for screening procedures are stated in Rule 4-1.0(k). Rule 4-1.12(c)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[5] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.