Consent of All Parties

Consent of All Parties

Rule 1.12(a) lifts its bar on representing anyone in a matter the lawyer handled personally and substantially as a neutral when “all parties to the proceeding give informed consent, confirmed in writing.”¹ That clause makes three demands: the consent must come from all the parties, it must be informed, and it must be confirmed in writing. A lawyer who satisfies two of the three remains disqualified. The rule’s opening words, “Except as stated in paragraph (d),” point to a separate exception that a later section covers.²

All Parties, Not Just the New Client

The text hands the power to lift the bar to “all parties to the proceeding.”³ The former neutral cannot lift it, and neither can the new client. The bar reaches a lawyer who would “represent anyone” in the matter, so it applies even when the new client is the side the neutral ruled for, and that client’s eagerness to hire the lawyer settles nothing for the other parties.⁴

Do not bring Rule 1.7’s vocabulary of adversity into this analysis. Under Rule 1.7, a directly adverse representation is a conflict whether or not the two matters are related.⁵ Rule 1.12(a) runs on a different trigger, the lawyer’s personal and substantial participation in the same matter as a neutral, and it requires no adversity at all.⁶

The word “all” reaches past the single opposing party. In a proceeding with several parties on each side, the text asks for every party’s consent and draws no line between those opposed to the new client and those aligned with it. Two shortcuts tempt lawyers and students alike, and both fail. The first relies on the new client’s consent alone. The second treats an opponent’s failure to object as agreement, though the rule speaks of parties who give consent, and a party that heard the proposal and stayed silent has given nothing. An exam stem that reports an enthusiastic waiver from the new client has told you about one party only.

The parallel rule for former government lawyers shows the same design. Rule 1.11(a) gives its consent exit to the government agency, the lawyer’s former client, and not to the lawyer’s new private client.⁷ That rule also states the underlying worry: a lawyer should not exploit a public position to become attractive to future employers, or later try to subvert the decision made while in public service.⁸ By analogy, a neutral’s ruling for one party followed by an engagement from that party invites the question whether hope of later work shaped the ruling, and the party left out of the new arrangement has the most reason to ask it. The new client’s willingness to waive therefore covers nothing beyond the new client.

Informed Consent

Consent counts only when the parties know what they are agreeing to. The commentary to Rule 1.7, which uses the same “informed consent, confirmed in writing” formula, describes informed consent as resting on the lawyer’s full disclosure of the risks and advantages of proceeding with the representation, ordinarily presented in a face-to-face conversation.⁹ Carried over to a former neutral, that means each party hears, before agreeing, what the lawyer did in the earlier role and what the lawyer now proposes to do. Those are the facts a party needs to judge whether the former neutral’s new position threatens it.

Confirmed in Writing

The writing requirement turns on a defined phrase. Rule 1.0(b) treats consent as “confirmed in writing” when the person supplies a writing or when the lawyer promptly transmits a writing confirming an oral informed consent, so the agreement itself may be oral as long as a confirmation follows.¹⁰ If obtaining or sending the writing is not feasible at the moment of consent, Comment 20 to Rule 1.7 requires the lawyer to obtain or send it within a reasonable time afterward.¹¹ The writing impresses on people the seriousness of the decision and heads off later disputes and ambiguities, but it does not replace the disclosure that makes consent informed.¹² A telephone agreement followed by the lawyer’s prompt confirming letter meets both demands, while a signed form that disclosed nothing meets only the second.¹³

Former Clerks and the Consent Route

One court applying Rule 1.12 to former law clerks described two independent routes. A former clerk may appear in a case that was pending in the court during the clerkship if either the clerk did not participate personally and substantially in the case or all parties to the proceeding consent.¹⁴ The routes ask different questions. The first examines what the clerk did, and the second asks whether the parties are willing to waive. A clerk whose work was substantial can therefore still appear when every party agrees. The version of the rule the court quoted spoke of consent “after consultation,” while the current text requires informed consent, confirmed in writing, so a clerk today must meet that fuller standard.¹⁵

The court also set a procedure for its own former clerks. A clerk who wants to appear, by either route, must file a motion for permission supported by an affidavit disclosing all pertinent facts, including the other parties’ positions if known.¹⁶ The affidavit leaves a reviewable record of what the parties said, and the motion lets the court oversee the process so that Rule 1.12 is not abused.¹⁷

Consent belongs to paragraph (a), the provision about representing someone in the matter. The ban on negotiating for employment is a separate prohibition, covered later in this chapter. The government-lawyer parallel describes that ban in general terms, warning that a lawyer who seeks private employment from an interested party risks being improperly influenced, and it states one carve-out: law clerks may negotiate subject to Rule 1.12(b), which requires notifying the judge.¹⁸ The clerk’s route there turns on notice to the judge, not on the agreement of the parties.