Arbitration and Mediation Ban

Rule 3.9 states its prohibition in one sentence: a judge "shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge's official duties unless expressly authorized by law."¹ The sentence does three jobs. It bars the two best-known private neutral roles, it extends the bar to any other judicial function outside the judge's official duties, and it permits one exception, for roles that the law expressly authorizes. The next three subsections take those jobs in that order.

The reasoning behind the line is easier to follow before the details. A judge's power to decide a case comes from the public office, and a litigant in that court is bound by the ruling whether or not the litigant wanted that judge. Arbitration and mediation rest on a different footing: the disputants choose the neutral and agree to the process. A judge who accepts such an engagement takes skills built in public office into a private arrangement. Because the work looks like judging from the outside, the skill involved cannot separate the permitted from the forbidden. The rule asks who engaged the judge and whether the court assigned the work.

Private neutral work also creates relationships that outlast the engagement. The lawyers and parties who retain a judge as a neutral may later appear in that judge's own courtroom, and a judge who has worked for them, or hopes for more such work, invites the question whether a later ruling is made without regard to the connection. Rule 3.9 answers by keeping adjudication inside the public court system unless a law expressly says otherwise. On any fact pattern, then, the first question is whether someone outside the judge's official duties has asked the judge to decide a dispute or to broker a resolution.

Private Arbitrating and Mediating

Rule 3.9 begins with the two roles that most directly borrow a judge's skills: a judge "shall not act as an arbitrator or a mediator" apart from official duties unless the law expressly authorizes it.² An arbitrator hears the competing positions and issues a decision the disputants have agreed in advance to accept. A mediator decides nothing and helps the disputants work out a settlement themselves. The rule names both because each draws on the same asset, a reputation for treating adversaries fairly. A mediator who can impose nothing still depends on that reputation, since the parties weigh the mediator's suggestions only because they trust the person making them. A judge cannot escape the rule by pointing out that a mediator never issues a ruling.

The prohibition attaches to the role and says nothing about payment. A judge who arbitrates or mediates for free stands exactly where a judge who charges a fee stands, a point students often miss because help for friends feels harmless. The neighboring rule on practicing law shows the contrast. Rule 3.10 draws a compensation line expressly, allowing a judge to give legal advice to family members only "without compensation," and Rule 3.9 contains no comparable condition.³

A line drawn at the role serves two ends that a line drawn at the fee would miss. First, the ties the rule worries about form whether or not money moves. Disputants who ask a judge for free help are drawing on the prestige of the office, and they, their lawyers, and anyone who hears of the judge's availability may later appear in the courtroom carrying gratitude or hope of a return favor. Second, the line is easy to apply. If free engagements were allowed, every arrangement would raise the question whether it was really uncompensated, since a later gift, a trade of favors, or a referral of other work can each stand in for a fee. Looking at the role alone removes that inquiry and gives the judge a line that can be applied before the engagement begins.

The rule carries its own boundary in the phrase "apart from the judge's official duties."⁵ Neutral work that the court assigns as part of the judge's docket falls on the permitted side of it. The parties are before the court because they filed there, the judge did not seek them out, and the public court system rather than the judge's private choice defines the assignment. The private market for the judge's reputation, and the new private relationships Rule 3.9 targets, never arise.

In both settings the judge helps parties toward agreement, so the skill used cannot separate them. The difference lies in who defined the engagement: the friends picked the judge for the Saturday session, and the court assigned the settlement conference as part of managing a pending case. When a fact pattern shows a judge helping parties resolve a dispute, ask who engaged the judge and whether the work reached the judge through the court's own assignment. The next two subsections adjust this baseline. One covers the catch-all for other judicial functions, the other the exception for roles expressly authorized by law.

Other Judicial Functions

Rule 3.9 does not stop at the words arbitrator and mediator. The same sentence bars a judge from performing "other judicial functions apart from the judge's official duties" unless the law expressly authorizes the role.⁷ The phrase is a catch-all, a general clause placed after a short list so that the rule reaches conduct the list does not name. In practice the analysis turns on what the judge is doing, and the title on the engagement letter drops out.

Imagine the rule without that clause and the reason becomes plain. A ban limited to two labels would invite the same private adjudicative service to be offered under another name, such as referee, hearing officer, or private judge, and the entanglements the rule exists to prevent would follow all the same. Private parties would still select the judge, the judge would still form ties with them and with the lawyers who bring them, and those ties would still surface later in the public courtroom. Naming a function closes the gap by making the substance of the role decisive. A judicial function, in the sense the clause uses, is a task that draws on the judge's adjudicative position, such as hearing competing positions and deciding how a dispute should come out. Whoever engages the judge for that task is drawing on the judgeship, whatever the arrangement is called.

An exam stem that wants to disguise a prohibited role will change the label and leave the substance in place. Scanning for the words arbitration or mediation is the instinct that loses the point.

The boundary drawn in the previous subsection survives in the catch-all clause, and it marks what remains allowed. Because the rule says "apart from the judge's official duties," a function the judge performs because the court assigned it stays outside the ban.⁹ The public system defined that assignment and supervises it, and no private party selected the judge or pays for the service, so the relationships the rule worries about never form.

The judge decides a dispute between other people in both scenes, so the adjudicative skill involved cannot separate them. The difference lies in who created the role. The association invented the hearing officer position and offered it to the judge, while the court created the trial assignment as part of managing its own cases. A role that a law expressly authorizes is a separate matter, and the next subsection takes it up as the one exception to the ban.

Authorized by Law Exception

Rule 3.9 ends its prohibition with one qualifier: a judge may act as an arbitrator, a mediator, or in another judicial function apart from official duties when the role is "expressly authorized by law."¹¹ That phrase is the rule's only exception, and it makes two demands that do separate work. The authorization must come from law, a source with lawmaking force, so a colleague's view of the role falls short. It must also be express: the source must speak to the role itself, and the judge cannot assemble it by inference. The rule text marks "law" with an asterisk, which flags a defined term in the Code's Terminology, and the definition is broad, covering court rules, statutes, constitutional provisions, and decisional law.¹² A judge therefore has several places to look for authorization, and each is an act of a public body.

The exception takes this shape because of what Rule 3.9 guards against. Private neutral work lets disputants pick the judge and form ties that can resurface in the public courtroom. When a legislature or a court rulemaking body directs judges to serve in a particular program, a public institution has already weighed those independence and conflict concerns and has fixed the program's terms, such as which cases are covered and how the role is assigned. The judge then performs a role the public system defined, and the judge's own appetite for the work plays no part. Requiring the authorization to be express protects that structure. If a judge could infer authority from a general statute encouraging settlement, or from the broad powers of the judicial office, each judge would decide for the judge's own case whether the exception applied, and the ban would give way whenever a judge found the role attractive.

An exam stem built on this clause usually offers a comfortable substitute for authorization and then asks whether the judge may proceed. The question to put to the substitute is whether it is itself law.

When a state has actually chosen to put judges in a neutral role, it writes that choice into law, and the analysis comes out the other way.

Both judges would sit as neutral deciders of other people's disputes, so the skill involved cannot account for the different outcomes. The deciding fact is the source of the authority: in the second scene, an enactment of a public body that names the role; in the first, only the approval of colleagues. The authorization also reaches only the role the law describes, so a judge cleared to arbitrate inside the statutory program has no license to take private mediation work on the side.¹⁵