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

(a) Except as stated in paragraph (d) and inRule 2.4(c), a lawyer shall not represent anyone in connection with a matter inwhich the lawyer participated personally and substantially as a judge or otheradjudicative officer or law clerk to such a person, or as an arbitrator,mediator or other third-party neutral, unless all parties to the proceedinggive informed consent, confirmed in writing.

(b) A lawyer shall not negotiate for employment with any personwho is involved as a party or as lawyer for a party in a matter in which thelawyer is participating personally and substantially as a judge or otheradjudicative officer or as an arbitrator, mediator or other third-partyneutral. A lawyer serving as a law clerk to a judge or other adjudicativeofficer may negotiate for employment with a party or lawyer involved in amatter in which the clerk is participating personally and substantially, butonly after the lawyer has notified the judge or other adjudicative officer.

(c) If a lawyer is disqualified by paragraph(a), no lawyer in a firm with which that lawyer is associated may knowinglyundertake or continue representation in the matter unless:

(c)(1) the disqualified lawyer is timely screened from anyparticipation in the matter and is apportioned no part of the fee from thatmatter; and

(c)(2) written notice is promptly given to the parties and anyappropriate tribunal.

(d) An arbitrator selected as a partisan of a party in amultimember arbitration panel is not prohibited fromsubsequently representing that party.

Comment

[1] This Rule generally parallels Rule 1.11. The term"personally and substantially" signifies that a judge who was amember of a multimember court, and thereafter left judicial office to practicelaw, is not prohibited from representing a client in a matter pending in thecourt, but in which the former judge did not participate. So alsothe fact that a former judge exercised administrative responsibility in a courtdoes not prevent the former judge from acting as a lawyer in a matter where thejudge had previously exercised remote or incidental administrativeresponsibility that did not affect the merits. Compare the Comment to Rule1.11. The term "adjudicative officer" includes such officials asjudges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and alsolawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C ofthe Model Code of Judicial Conduct provide that a part-time judge, judge protempore or retired judge recalled to active service, may not "act as alawyer in any proceeding in which he or she served as a judge or in any otherproceeding related thereto." Although phrased differently from this Rule,those rules correspond in meaning.

[2] Like former judges, lawyers who have served as arbitrators,mediators or other third-party neutrals may be askedto represent a client in a matter in which the lawyer participated personallyand substantially. This Rule prohibits such representation unless all of theparties to the proceedings give their informed consent, confirmed inwriting. See Rule 1.0(f) and (b). Other law or codes of ethicsgoverning third-party neutrals may impose more stringentstandards of personal or imputed disqualification. See Rule 2.4.

[3] Although lawyers who serve as third-party neutrals do not haveinformation concerning the parties that is protectedunder Rule 1.6, they typically owe the parties an obligation of confidentialityunder law or codes of ethics governing third-party neutrals. Thus, paragraph(c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless theconditions of this paragraph are met.

[4] Requirements for screening procedures arestated in Rule 1.0(m). Paragraph (c)(1) does not prohibit the screenedlawyer from receiving a salary or partnership share established by priorindependent agreement, but that lawyer may not receive compensation directlyrelated to the matter in which the lawyer is disqualified.

[5] Notice, including a description of the screened lawyer's priorrepresentation and of the screening procedures employed, generally should be given as soon as practicable after the need forscreening becomes apparent.

 

Effective November 1, 2017