Concept
Covered Neutral Roles
Former judge, arbitrator, mediator, or other third-party neutral
Covered Neutral Roles
Rule 1.12(a) names the covered roles in one clause: the lawyer must have participated personally and substantially "as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral."1 The clause reads like a grab bag of job titles, since a trial judge, a private arbitrator, and a mediator who decides nothing have little in common on the surface. What they share is position. Each stood above a dispute, or beside someone who did, rather than on one side of it. The titles are examples of that function, and the open-ended phrases "other adjudicative officer" and "other third-party neutral" tell you to apply the rule to anyone who performed it.
Exam problems therefore seldom announce that the lawyer was a "judge." They describe a hearing officer at an agency, a settlement facilitator, or a clerk who drafted memoranda, and ask whether the role fits. Ask what the person did in the matter. A court applying the rule to a former judge explained why function governs: litigants must be able to trust that a judicial officer privy to revelations in settlement conferences will not later become aligned with the opposition.2 The court set that case apart from the government-information setting because the former judge had become privy to the confidences of private parties to the litigation.3 The concern attaches to what the neutral learned, so it follows the role wherever the neutral sat.
Coverage is only the first question. A lawyer in a covered role is barred only from matters in which the participation was personal and substantial, and the bar lifts with informed consent from all parties, confirmed in writing; later sections take up both limits. The sections below sort the roles into three groups: officers who decide, their assistants, and neutrals such as arbitrators and mediators.
Judges and Adjudicative Officers
Rule 1.12(a) opens its list with "a judge or other adjudicative officer."4 The word "other" does the stretching. The phrase is not confined to those who hold the title of judge, and a hearing officer who takes evidence and decides a dispute performs the same function. The working question is therefore what the lawyer did in the matter, because the capacity in which the lawyer acted, and not the title, brings the lawyer within the rule.
Cho v. Superior Court shows a court reading the role rather than the label. The concern there was a former judge who had been privy to revelations about the case in the course of settlement conferences, and the court insisted that litigants be able to trust that such an officer will not later become aligned with the opposition.5 The court's worry attached to what the judge had learned in those conferences, and it distinguished the government-information setting because the former judge had become privy to the confidences of private parties.6 A judge who presided over settlement talks, and not merely one who ruled on the merits, therefore presents the concern the rule addresses.
The mirror image is the lawyer who never stood above the dispute at all.
The advocate falls outside Rule 1.12 because the rule speaks only to lawyers who held an impartial position or assisted someone who did. A lawyer who represented a side owed that client's loyalty, and the former-client rules govern that situation. On an exam, a stem describing someone who ruled on, presided over, or mediated a dispute points to Rule 1.12, and a stem describing someone who represented a side points away from it.
Law Clerks
Rule 1.12(a) reaches a lawyer who participated personally and substantially as a "law clerk to such a person," meaning a judge or other adjudicative officer, so a former judicial clerk faces the same bar as the judge for any matter on which the clerk's participation met that standard.8 A clerk works inside the court's internal decision-making process, and that process is confidential.9 A clerk who later appears for one party in a case the court was handling carries knowledge of the court's thinking that the other side cannot check, which explains why the rule extends to clerks.
The Model Rules also treat a clerk's job search with care. The ban on a public lawyer negotiating for private employment carries an exception for a law clerk to a judge, other adjudicative officer, or arbitrator, who may negotiate subject to Rule 1.12(b), which requires notifying the judge, adjudicator, or arbitrator.10 A later section covers that exception.
Bradley v. State of Alaska gives the clearest account of how a former clerk gets clear to appear. The court stated two routes: a former clerk can appear in a case that was pending in the court during the clerkship if either the clerk did not participate personally and substantially, or all parties consent.11 The routes are alternatives, and they ask different questions. The first looks at what the clerk did, and the second looks at what the other parties will accept, so even a clerk who took a heavy part can appear when every party waives the bar. The court quoted consent "after consultation," while the current Model Rule text calls for informed consent, confirmed in writing.12
The court also set a procedure. A former clerk who wants to appear in a case that was pending during the clerkship must file a motion for permission and support it with an affidavit disclosing all pertinent facts, including the other parties' positions if known.13 The affidavit creates a reviewable record and lets the court oversee the process so that Rule 1.12 is not abused.14
The procedure answers a real weakness. The court presumed that former clerks would be candid, but it recognized that an opposing party who doubts the clerk's denial of personal and substantial participation has little or no way of verifying or disputing it, because the court's internal decision-making is confidential.15 The clerk's own sworn account is therefore the main evidence, and the safeguards that remain are full disclosure, a record the court can review, and the other parties' power to consent or object.
What counts as personal and substantial participation by a clerk depends on duties, and Comparato v. Schait recounts one example. In Marxe v. Marxe, a New Jersey Chancery Division court held that an attorney who had clerked for the judge during a period in which the court decided several motions in a matrimonial case had not participated personally and substantially in that case for purposes of RPC 1.12(a).16 Among the factors the court noted were the clerk's primary duties, which included monitoring the motions for each motion cycle and summarizing the pleadings for the judge's review.17 Holding the clerkship while the court decided motions in the case was not enough by itself, and those duties describe routine processing rather than work on the merits.
The rule is confined to clerks of judges and adjudicative officers, and a different kind of clerking falls outside it.
A stem that mentions a clerk therefore requires one preliminary question: whom did the person clerk for? A clerk to a court or hearing officer brings in the rule discussed here, and a clerk to a private firm brings in a different set of rules.
Arbitrators and Mediators
Rule 1.12(a) closes its list with "arbitrator, mediator or other third-party neutral," so the bar follows a lawyer who decided disputes privately and a lawyer who only helped parties settle.22 The two functions differ, because an arbitrator decides and a mediator does not, yet the rule names both.
An arbitrator with ultimate authority to resolve a dispute, alone or as a member of a panel, assumes responsibilities similar to a judge's. They include maintaining impartiality, unless the lawyer was selected as a partisan of a party on a multimember panel, and avoiding ex parte communications, meaning contacts with one party outside the other's presence.23 Because the arbitrator's role so closely resembles the judge's, the analysis for former judges carries over. A lawyer who arbitrated a dispute and is later asked to represent either side in connection with it faces the same bar. A later section takes up the partisan arbitrator exception.
A mediator cannot decide the dispute, and the rule names mediators anyway. The concern the court identified in Cho applies to a mediator as it does to a judge who runs settlement talks: the neutral sits between parties trying to settle and may hear what each side says about the case, and the parties need confidence that the neutral will not later align with one of them.24
The Model Rules reinforce the point that a neutral stands apart from the parties. Rule 2.4(b) requires a lawyer serving as a third-party neutral to inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party misunderstands the role, the lawyer must explain the difference between a neutral and a lawyer who represents a client.25 The consequence for Rule 1.12 is structural. A neutral has no client, so the former-client rules, which protect a lawyer's own clients, do not describe the neutral's duties. Rule 1.12 supplies a standard for neutrals and ties the bar to the matter the neutral handled.
The same-matter and different-matter cases show where the bar attaches.
The bar attaches to the matter, and the two scenes differ on exactly that point. Two errors follow from overlooking it. A student who reasons that a mediator decides nothing, and so cannot be a covered neutral, has ignored the rule's express reference to mediators. A student who treats every former mediator as barred from every later engagement has ignored the requirement that the lawyer have participated personally and substantially in the very matter, which the next sections develop.