18.06. Lawyer as Third Party Neutral: In Future Litigation [Rule 1.12]

When a lawyer serves as a mediator or arbitrator, a judge, or a law clerk to one of these persons, they may wish to subsequently represent one of the parties that participated in the dispute.[1]  Rule 1.12 prohibits a lawyer from subsequently representing a person in the matter if the lawyer “participated personally and substantially” unless all involved parties give informed consent to the representation that is confirmed in writing.  The justification for this prohibition is that the lawyer has obtained information the lawyer must keep confidential pursuant to the rules governing the alternative dispute resolution process (note that the lawyer does not have an obligation to keep the information confidential under Rule 1.6 because the lawyer is not representing a party in the matter).[2]    However, when a lawyer is disqualified because of participation in the matter, the lawyer’s firm may accept the representation if:  (1) the disqualified lawyer is timely screened from participating in the matter and gets no fee from the representation; and (2) written notice is given to the parties and the tribunal so they can ensure that the screen is effective.

Judy Judge served one term on the Mississippi Supreme Court as a justice on that court.  She decided that she would not run for re-election and would open her own law firm instead.  She opened a firm and took the case of Clarence Client.  The trial judge in Clarence’s case granted a summary judgment motion on behalf of the defendant.  Judy wants to appeal to the Mississippi Supreme Court.  She is concerned that she will be disqualified from the case because she previously sat on the court.  Is Judy disqualified? [ABA Rule 1.12, Comment [1]]

No.  Judy did not work “personally and substantially” on Clarence’s case while she was on the court.  Therefore, Rule 1.12 does not bar her representation before the Mississippi Supreme Court.

There is one exception to the prohibition on a lawyer that served as an arbitrator in a matter subsequently representing one of the parties.  Some arbitration agreements provide that each party selects an arbitrator (and there is usually a third neutral arbitrator).  In these situations – where the arbitrator was selected as a party’s representative on a multimember panel, the lawyer is not prohibited from subsequently representing the party in the matter.[3] 

The Rule also attempts to limit the number of conflicts of interest that could arise as a result of the lawyer’s participation as a third party neutral, judge or law clerk in a matter.  Rule 1.12(b) prohibits a lawyer who is acting as a judge, arbitrator, or mediator from negotiating for employment with anyone involved as a party or lawyer in the matter.[4] If the lawyer is serving as a law clerk in the matter, may negotiate for employment with a party/lawyer in the matter so long as the lawyer has notified the judge/third party neutral about the negotiations.

[1] When a person is a sitting judge, their ethical obligations are set out in the Code of Judicial Conduct.  When that person is no longer on the bench (a former judge), the rules governing lawyers apply.

[2] ABA Rule 1.12, Comment [3].

[3] ABA Rule 1.12(d).

[4] ABA Rule 1.12(b).