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Rule 1.12. Former Judge, Arbitrator, Mediator or OtherThird-Party Neutral.

(a) Except asstated in paragraph (d) and in Rule 2.4(c), a lawyer shall not represent anyonein connection with a matter in which the lawyer participated personally andsubstantially as a judge or other adjudicative officer or law clerk to such aperson, or as an arbitrator, mediator or other third-party neutral, unless allparties to the proceeding give informed consent, confirmed in writing.

(b) A lawyershall not negotiate for employment with any person who is involved as a partyor as lawyer for a party in a matter in which the lawyer is participatingpersonally and substantially as a judge or other adjudicative officer or as anarbitrator, mediator or other third-party neutral. A lawyer serving as a lawclerk to a judge or other adjudicative officer may negotiate for employmentwith a party or lawyer involved in a matter in which the clerk is participatingpersonally and substantially, but only after the lawyer has notified the judgeor other adjudicative officer.

(c) If a lawyeris disqualified by paragraph (a), no lawyer in a firm with which that lawyer isassociated may knowingly undertake or continue representation in the matterunless:

(c)(1) thedisqualified lawyer is timely screened from any participation in the matter andis apportioned no part of the fee from that matter; and

(c)(2) writtennotice is promptly given to the parties and any appropriate tribunal.

(d) Anarbitrator selected as a partisan of a party in a multimember arbitration panelis not prohibited from subsequently representing that party.

Comment

[1] This Rulegenerally parallels Rule 1.11. The term "personally andsubstantially" signifies that a judge who was a member of a multimembercourt, and thereafter left judicial office to practice law, is not prohibitedfrom representing a client in a matter pending in the court, but in which theformer judge did not participate. So also the fact that a former judgeexercised administrative responsibility in a court does not prevent the formerjudge from acting as a lawyer in a matter where the judge had previouslyexercised remote or incidental administrative responsibility that did notaffect the merits. Compare the Comment to Rule 1.11. The term"adjudicative officer" includes such officials as judges pro tempore,referees, special masters, hearing officers and other parajudicialofficers, and also lawyers who serve as part-time judges. Compliance CanonsA(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-timejudge, judge pro tempore or retired judge recalled to active service, may not"act as a lawyer in any proceeding in which he served as a judge or in anyother proceeding related thereto." Although phrased differently from thisRule, those rules correspond in meaning.

[2] Like formerjudges, lawyers who have served as arbitrators, mediators or other third-partyneutrals may be asked to represent a client in a matter in which the lawyerparticipated personally and substantially. This Rule prohibits suchrepresentation unless all of the parties to the proceedings give their informedconsent, confirmed in writing. See Rule 1.0(f) and (b).Other law or codes of ethics governing third-party neutrals may impose morestringent standards of personal or imputed disqualification. See Rule 2.4.

[3] Althoughlawyers who serve as third-party neutrals do not have information concerningthe parties that is protected under Rule 1.6, they typically owe the parties anobligation of confidentiality under law or codes of ethics governingthird-party neutrals. Thus, paragraph (c) provides that conflicts of thepersonally disqualified lawyer will be imputed to other lawyers in a law firmunless the conditions of this paragraph are met.

[4] Requirementsfor screening procedures are stated in Rule 1.0(m). Paragraph (c)(1) does notprohibit the screened lawyer from receiving a salary or partnership shareestablished by prior independent agreement, but that lawyer may not receivecompensation directly related to the matter in which the lawyer isdisqualified.

[5] Notice,including a description of the screened lawyer's prior representation and ofthe screening procedures employed, generally should be given as soon aspracticable after the need for screening becomes apparent.

 

Effective November 1, 2017