Concept
Conflicts After Neutral Service
Lawyer as arbitrator, mediator, or other third-party neutral
Conflicts After Neutral Service
A lawyer who serves as a third-party neutral may later be asked to represent a client in the same matter. The comment to Rule 2.4, as Florida adopted it, flags that request and sends the reader to the rule that governs it: the conflicts for both the individual lawyer and her firm are addressed in Florida's rule 4-1.12, which parallels Model Rule 1.12.1 The cross-reference carries a lesson of its own. A neutral's obligations do not end when the session or hearing ends, and the role can limit what she may do for the rest of her career.
The limit follows from what a neutral is. She takes a position of general neutrality toward every participant, acting disinterestedly and equitably.2 In that position she learns about the dispute from all sides, often more candidly than any party would speak to an opponent. A lawyer who then takes one side's engagement in the same matter would turn what she learned while serving everyone against everyone else. The participants confided in her because she favored no one, and the later switch betrays that reliance. Rule 1.12 therefore treats a former arbitrator, mediator, or other third-party neutral much as it treats a former judge or other adjudicative officer.3
Three questions follow once a lawyer has served as a neutral, and the subsections below take them in turn. May the former neutral herself represent anyone in the matter she handled? Does her disqualification pass to the other lawyers in her firm, and how can the firm avoid that result? And what limits her while she is still serving, before the matter ends, when she may be tempted to look toward her next position?
Barred From Later Representation
Rule 1.12(a) answers the first question. A lawyer may not represent a client “in connection with a matter in which the lawyer participated personally and substantially” as an arbitrator, mediator, or other third-party neutral, “unless all parties to the proceeding give informed consent, confirmed in writing.”4 Three parts do the work: the capacities the rule covers, the amount of participation that triggers it, and the consent that lifts it. Paragraph (d) adds a narrow exception for one kind of arbitrator.5 The bar binds the former neutral herself. What it does to her firm comes next.
The list of capacities is wider than the arbitrator's job. The bar covers lawyers who decided a dispute, such as judges, other adjudicative officers, and arbitrators, and it also covers mediators and other third-party neutrals who only helped the parties reach their own resolution.6 A mediator can neither decide nor compel a decision, so it is tempting to conclude that the bar skips her, since the power to rule is what makes a judge's later switch to advocacy troubling. That conclusion overlooks what a mediator holds. A mediator who meets privately with each side may know the figure one party could accept, the weakness another admitted, or the fact neither would say before its opponent. She keeps that knowledge whether or not she ever ruled on anything. If she later appeared for one party against the other in the same matter, the other party's confidences would sit in its adversary's lawyer. That is why a lawyer-mediator should warn the parties at the outset, as noted earlier in this chapter, that she cannot later represent either of them in the matter.7
The bar also looks forward. Judicial and quasi-judicial officers are expected to exercise their authority with attention to the public interest and not to curry favor with those who may later offer them work.8 A neutral who could expect one participant to hire her after the matter ended would have a reason, while it was still pending, to treat that participant a little more gently than the other. Barring the later representation removes the reward, so each participant can count on her even-handedness from the first session. The same worry, applied to a lawyer who is still serving, produces a separate rule on negotiating for employment, which the last subsection takes up.
Not every contact with a matter triggers the bar, because the rule requires participation that is both personal and substantial. Personal means direct: the lawyer herself must have taken part in her neutral capacity. Comment 1 to Rule 1.12 illustrates the point with a judge on a multimember court, who is not disqualified merely because the matter was pending before a different judge.9 Substantial means more than remote awareness or incidental administrative responsibilities that did not affect the merits.10 Both reasons for the bar depend on involvement with the merits. A lawyer who only logged a filing learned nothing a later client could exploit and gave no participant cause to expect favor.
Yet participation need not run to the end of the matter. A judge who presided over a criminal defendant's initial appearance, explaining the defendant's rights and making a probable cause determination, has exercised substantial responsibility and may not later represent anyone in that matter.11 The same reasoning reaches a mediator who ran the opening session, heard each side's account of its position, and then withdrew. She engaged with the merits even though another neutral finished the work.
The bar yields to consent, but the rule is specific about whose consent counts and in what form. It requires informed consent from all parties to the proceeding, confirmed in writing. The disqualification may be removed once every party has been told the pertinent aspects of the lawyer's earlier involvement and of the representation she now proposes.12 The word all means the party that wants to hire the lawyer cannot waive on its own. The protection belongs to the people whose confidences she holds, and that includes the opponent, who is the party most exposed by her switch. The writing requirement puts the terms of the consent on paper, so a later dispute over whether the opponent truly understood and agreed can be settled by a document and not by competing recollections.
Does the bar follow every lawyer who has ever sat on an arbitration panel? Paragraph (d) says it does not: an arbitrator “selected as a partisan of a party in a multimember arbitration panel” is not prohibited from later representing the party for whom he was selected.13 The reason lies in what the bar protects. It protects the participants' reliance on a neutral's even-handedness, and no one relied on a partisan for that. Everyone knew whose side he was on, and the opposing party had an appointee of its own. The selection that frees a partisan member from the duty of impartiality during the arbitration frees him from the bar afterward.14
The exception attaches to the manner of selection and not to the label “arbitrator.” A sole arbitrator and a panel's neutral chair were never anyone's partisan, so the exception does not reach them. Paragraph (d) names only arbitrators selected as partisans, and it gives a mediator no counterpart.
Firm Screening and Notice
Rule 1.12(a) bars the former neutral herself, and Rule 1.12(c) decides what happens to the lawyers who practice alongside her. When a former arbitrator, mediator, or other third-party neutral is disqualified under paragraph (a), every other lawyer in her firm is disqualified too.16 That imputation, the attribution of one lawyer's disqualification to everyone in her firm, is the default, so the firm starts out barred and must act to escape. The rule supplies an exit: the other lawyers may undertake or continue the representation if three conditions are met.17 Imputation presupposes a disqualification to impute. A partisan arbitrator who may represent the party that selected him under Rule 1.12(d), or a former neutral whose disqualification all parties lifted by informed consent confirmed in writing, therefore creates no imputation problem for the firm.18 The practical question about any firm that hires a former neutral is whether it has met all three conditions.
The default exists because lawyers in one firm are positioned to share what they know and to influence one another, so the danger that disqualifies one lawyer does not stay with her. A former mediator who heard each side's private bottom line need not say a word to a colleague for the other participants to be at risk, since they cannot know what passes between lawyers down the hall. Those participants spoke candidly because the neutral favored no one, and a firm that takes one side's engagement after hiring her would put what she learned within reach of that side's lawyers. Treating the whole firm as disqualified closes that possibility unless the firm shows it has cut the connection. The exit must therefore address the two things that move easily inside a firm: information, and the financial interest of a lawyer whose firm stands to be paid.
The rule states the conditions in three parts. The disqualified lawyer “is timely screened from any participation in the matter,” she “is apportioned no part of the fee” from the matter, and “written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.”19 The first two each block a different route by which the former neutral's position could benefit one side. The third makes the first two checkable by people outside the firm.
The screen cuts off the flow of information at its source, which is why imputation rests on the worry that what the former neutral knows can travel to her colleagues. Two words in the condition do the work. Timely means the screen must be in place early enough to matter, because a barrier raised after the matter is under way protects nothing for the interval before it went up. Any means she must be kept out of the matter entirely, so participation that is partial or slight still defeats the condition.
The fee limit addresses the second route. A screen guards information, but a lawyer who would share in the fee still has a financial reason to want the firm to win, and so a reason to help it despite the screen. Denying her any part of the fee removes that stake and leaves her with no personal interest in how the matter turns out. The screen blocks the transfer of what she knows, and the fee rule blocks the pull of what she would earn.
The first two conditions operate inside the firm, where nobody outside can observe them. A party whose private statements were heard by the former neutral has no window into whether a screen exists or whether she draws a share of the fee, and an assurance from the firm comes from the very actor that wants to keep the engagement. Written notice puts the facts before the people entitled to test them, including a tribunal with authority over the matter, so that compliance does not rest on the firm's own say-so.20 The word promptly works like timely in the screening condition, because the parties must learn of the arrangement early enough for the check to mean something.
The conditions are cumulative, and each covers a gap the others leave. A firm that screens and withholds the fee but skips notice has left its compliance unverifiable, and the imputed disqualification stands. A firm that sends a prompt notice but leaves the former neutral free to work on the matter has met one condition and failed another, which is equally fatal.
Negotiating for Employment
Rule 1.12(b) closes a gap that the bar on later representation leaves open: the period while the lawyer is still serving. It forbids a lawyer to negotiate for employment with “any person who is 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.22 Paragraph (a) looks backward, at what a former neutral may do once the matter is over. Paragraph (b) looks at the present, and it extends to current arbitrators, mediators, and other neutrals the limit on negotiating for future employment that already governs current judges and adjudicative officers.23
The reason lies in what a neutral is worth to the people who come before her. She holds a position of general neutrality toward every participant and acts disinterestedly and equitably, whether she decides the dispute or helps the parties decide it themselves.24 A neutral who is discussing a job with one side's lawyers has a personal stake in pleasing that side, and the stake exists whether or not she ever acts on it. An arbitrator hoping to join a party's firm has a reason to read the contract a little more kindly toward that party. A mediator in the same position has a reason to press the other side a little harder, in caucuses the other side cannot observe. The standards for judicial and quasi-judicial officers aim to ensure that they exercise authority with faithful attention to the public interest and do not curry favor with those who may offer future employment.25 Rule 1.12(b) serves that aim at its source by barring the negotiation itself while the matter is pending, so the temptation never forms. Paragraph (a) removes the reward that would await a favored side after the matter ends, and paragraph (b) removes the conversation in which that reward could be dangled while the matter is still undecided.
Three features of the text set the reach of the bar, and an exam stem can change the answer by changing any one of them. The first is timing. Because the rule applies to a matter in which the lawyer is participating, it operates only for as long as her participation continues.26 The second is the phrase personally and substantially, which carries the same sense it has in paragraph (a): the lawyer must have taken part directly, and her part must have gone beyond remote awareness or incidental administrative responsibilities that did not affect the merits.27 A lawyer whose involvement never affected the merits has no outcome to bend in return for a job. The third is the identity of the person on the other side of the conversation, who must be involved in the matter as a party or as a lawyer for a party. A firm representing one of the disputants fits that description, and a firm with no role in the matter does not.
The text of paragraph (b) is also a flat prohibition. The consent mechanism taught above, under which all parties may lift the bar by informed consent confirmed in writing, belongs to paragraph (a), and the language of paragraph (b) quoted here contains no consent clause.28 Carrying that mechanism across is a common error, and it turns a prohibition on the conversation into something the parties can waive. The timing limit matters in the other direction too. Once the neutral's participation ends, paragraph (b) falls silent, and the questions that remain are whether she may represent anyone in that matter under paragraph (a) and whether the firm she joins can avoid imputation under paragraph (c).
The rule contains one exception, for the law clerk. A law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment, but only subject to the limits in Rule 1.12(b), which requires notification of the judge, adjudicator, or arbitrator.29 The government-lawyer conflicts rule, Rule 1.11, points to the same clerk provision, which confirms that the operative conditions are written in Rule 1.12(b).30 The exception follows from the clerk's position. A clerk assists the decisionmaker and does not hold the power to decide, and barring clerks from ever discussing work with the lawyers who appear before the chambers would leave them unable to pursue a career. The notice requirement reconciles the two concerns: the clerk may seek a position, and the judge, adjudicative officer, or arbitrator learns of it and can take whatever steps seem necessary to guard against bias in the matter.
The text names clerks to judges, other adjudicative officers, and arbitrators, and nothing in the rule widens the permission beyond the clerk. The arbitrator, adjudicative officer, or mediator whom the clerk assists remains fully subject to the prohibition, and the clerk's own permission depends on notice. An answer that treats the exception as a general freedom for assistants has dropped its only condition.