Concept
Negotiating for Employment
Former judge, arbitrator, mediator, or other third-party neutral
Negotiating for Employment
Rule 1.12(a) looks backward. It asks what a lawyer did as a judge, law clerk, arbitrator, mediator, or other neutral, and once that service ends it bars the lawyer from representing anyone in connection with a matter in which the lawyer “participated personally and substantially,” unless all parties to the proceeding give informed consent, confirmed in writing.1 Paragraph (b) looks at the present. It governs a lawyer who is still serving and still participating personally and substantially in a matter, and it restricts what that lawyer may do about a future job while the matter stays open.2
Paragraph (b) exists because paragraph (a) arrives too late. Paragraph (a) operates only after the service ends and the lawyer proposes to represent someone, but the hope of a job does its damage earlier, while the decision is still to be made. The parallel rule for government lawyers names the worry: the risk is manifest that a lawyer serving in public office will be improperly influenced when seeking employment with a private person or entity that has an interest in the matter.3 A neutral who seeks work from someone with a stake in a matter still before the neutral runs the same risk.
The first subsection states the ban. The second covers law clerks, whose position differs from a judge's.
The Ban on Negotiating
Rule 1.12(b) forbids a lawyer to negotiate for employment with any person involved as a party, or as lawyer for a party, in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or as an arbitrator, mediator, or other third-party neutral.4 The present tense carries the rule. The lawyer “is participating” when the job talk occurs, and that timing separates paragraph (b) from paragraph (a) and fixes the question to ask in every problem under it.
The third step names both a party and a party's lawyer, so an approach from the firm appearing in the case is covered as surely as one from the litigant. The second step borrows the usual content of the two participation words. The commentary to the parallel government-lawyer rule treats participation as “personal” when the lawyer was directly involved, not merely a member of the same office as those who handled the matter, and as “substantial” when it goes beyond a routine or ministerial act.5 That standard keeps the ban from sweeping across an institution. A judge whose colleague is handling a firm's case, and who has done nothing in it, is not participating personally and substantially in that matter, so paragraph (b) does not bar that judge from talking with the firm about that case. The ban follows the matter, not the courthouse.
The defendant's lack of objection changes nothing because paragraph (b) contains no consent clause.6 Paragraph (a), in contrast, lifts its bar when all parties give informed consent, confirmed in writing.7 The omission makes sense. Consent under paragraph (a) lets the parties accept a known history and a defined proposal for later representation. Under paragraph (b) the matter is still open and the neutral's independent judgment is what is at risk, and a party asked to approve the neutral's job talks would have to choose between displeasing the person deciding its case and approving the very influence it fears.
The ban ends when the matter does. Paragraph (b) reaches a lawyer who “is participating” in the matter, so once nothing remains for the neutral to do, the paragraph no longer applies.8 The worry it addresses, that hope of reward will shade a decision still to be made, has nothing left to attach to.
Two errors follow from losing track of the timing. One treats the ban as permanent, as though a former neutral could never discuss work with a firm that appeared before the neutral. The other treats the end of the matter as the end of all restrictions, which forgets that paragraph (a) continues to limit what the lawyer may do in that matter.9 A third error is to reach for paragraph (a)'s consent clause when the facts describe a lawyer who is still serving. Consent belongs to the backward-looking paragraph and has no role in the forward-looking one.
Law Clerk Notice Exception
The second sentence of Rule 1.12(b) gives law clerks a different rule. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, “but only after the lawyer has notified the judge or other adjudicative officer.”11 The judge meets a prohibition, and the clerk meets a condition. The condition is a sequence, notice first and negotiation afterward, so the timing of the clerk's conversations is the central fact in any problem built on this provision.
The commentary to the government-lawyer rule calls law clerks “assistants” and ties their exception to Rule 1.12(b), which requires notification of the judge.12 The label suggests why the rule treats clerks more gently. The judge decides, and the clerk assists. The judge, who supervises the clerk, is also the one person positioned to protect the matter once told of the clerk's job search. A flat ban would force the clerk to put off any search among firms appearing before the court until the matter ended, whereas the notice rule lets the search go forward with the judge informed.
The rule asks the clerk to notify the judge. It does not ask for the judge's permission, and it adds no consent requirement. Notice still does real work, because it tells the person best placed to protect the matter that a clerk working on it is looking for a job with someone who has a stake in it. The rule does not script what the judge does next. A judge who knows can leave the clerk in place, reassign the matter, or watch the clerk's work more closely, and the rule leaves that choice to the judge.
The exception fails when the sequence fails.
The two clerks did the same thing, and the only difference is whether the judge knew before the first conversation. Notice is what puts the judge in a position to act, and a clerk who talks first denies the judge that chance for every day the matter remains open. A notice sent after an offer arrives cannot repair the omission, since the rule permits negotiation only “after” the notice. The rule also gives the clerk no need for permission, so a student who writes that the judge must approve the job talks has added a requirement the text omits. A student who writes that clerks may negotiate freely because they do not decide cases has dropped the condition the text attaches.
Proper notice permits the negotiation and nothing more. A clerk who joins the firm and who participated personally and substantially in the matter remains subject to paragraph (a), so the clerk may not represent anyone in connection with it unless all parties to the proceeding give informed consent, confirmed in writing.13 Whether the clerk's disqualification then extends to the new firm is a separate question, taken up in the screening sections below. The notice condition also attaches only to matters in which the clerk is participating personally and substantially, so the participation standard from earlier in this chapter decides which of the court's cases bring the condition into play.14