Print Version
Previous PageFile uploaded: 5/1/2019

Rule 2.4. LawyerServing as Third-Party Neutral.

(a) A lawyer serves as a third-party neutral when the lawyerassists two or more persons who are not clients of the lawyer to reach a resolutionof a dispute or other matter that has arisen between them. Service as athird-party neutral may include service as an arbitrator, a mediator or in suchother capacity as will enable the lawyer to assist the parties to resolve thematter.

(b) A lawyer serving as a third-party neutral shall informunrepresented parties that the lawyer is not representing them. When the lawyerknows or reasonably should know that a party does not understand the lawyer'srole in the matter, the lawyer shall explain the difference between thelawyer's role as a third-party neutral and a lawyer's role as one whorepresents a client.

(c) A lawyer serving as a mediator in amediation in which the parties have fully resolved all issues:

(c)(1) mayprepare formal documents that memorialize and implement the agreement reachedin mediation;

(c)(2) shallrecommend that each party seek independent legal advice before executing thedocuments; and

(c)(3) withthe informed consent of all parties confirmed in writing, may record or mayfile the documents in court, informing the court of the mediator's limitedrepresentation of the parties for the sole purpose of obtaining such legalapproval as may be necessary.

Comment

[1] Alternative dispute resolution has become a substantial partof the civil justice system. Aside from representing clients indispute-resolution processes, lawyers often serve as third-party neutrals. Athird-party neutral is a person, such as a mediator, arbitrator, conciliator orevaluator, who assists the parties, represented or unrepresented, in theresolution of a dispute or in the arrangement of a transaction. Whether athird-party neutral serves primarily as a facilitator, evaluator or decisionmaker depends on the particular process that iseither selected by the parties or mandated by a court.

[2] The role of a third-party neutral is not unique to lawyers,although, in some court-connected contexts, only lawyers are allowed to servein this role or to handle certain types of cases. In performing this role, thelawyer may be subject to court rules or other law that apply either tothird-party neutrals generally or to lawyers serving as third-party neutrals.Lawyer-neutrals may also be subject to various codes of ethics, such as theCode of Ethics for Arbitration in Commercial Disputes prepared by a jointcommittee of the American Bar Association and the American ArbitrationAssociation or the Model Standards of Conduct for Mediators jointly prepared bythe American Bar Association, the American Arbitration Association and theSociety of Professionals in Dispute Resolution.

[3] Unlike nonlawyers who serve asthird-party neutrals, lawyers serving in this role may experience uniqueproblems as a result of differences between the role of a third-party neutraland a lawyer's service as a client representative. The potential for confusionis significant when the parties are unrepresented in the process. Thus,paragraph (b) requires a lawyer-neutral to inform unrepresented parties thatthe lawyer is not representing them. For some parties, particularly parties whofrequently use dispute-resolution processes, this information will besufficient. For others, particularly those who are using the process for thefirst time, more information will be required. Where appropriate, the lawyershould inform unrepresented parties of the important differences between thelawyer's role as third-party neutral and a lawyer's role as a clientrepresentative, including the inapplicability of the attorney-clientevidentiary privilege. The extent of disclosure required under this paragraphwill depend on the particular parties involved and the subject matter of theproceeding, as well as the particular features of the dispute-resolutionprocess selected.

[4] A lawyer who serves as a third-party neutral subsequently maybe asked to serve as a lawyer representing a client in the same matter. Theconflicts of interest that arise for both the individual lawyer and thelawyer's law firm are addressed in Rule 1.12.

[5] Lawyers who represent clients in alternativedispute-resolution processes are governed by the Rules of Professional Conduct.When the dispute-resolution process takes place before a tribunal, as inbinding arbitration (see Rule 1.0(q)), the lawyer's duty of candor is governed by Rule 3.3.Otherwise, the lawyer's duty of candor toward both the third-party neutral andother parties is governed by Rule 4.1.

[5a] Rule 2.4(c) is intended to permit a lawyer-mediator forparties who have successfully resolved all issues between them to draft a legallybinding agreement and, to the extent necessary or appropriate, record or filerelated papers or pleadings with an appropriate tribunal. In so doing, thelawyer will be jointly representing the parties in their common goal ofeffecting proper legal filings or obtaining judicial approval of their fullyresolved issues. Because the parties in this situation have fully resolvedtheir issues, they are not considered "adverse" under Rule 1.7(a)(1). ABA Model Rule 2.4 does not address the lawyer'sdrafting of documents to implement the parties' agreement.

 

 

Effective May 1, 2019