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

(a) Except as stated in paragraph (d) and in Rule 2.4(c), a lawyershall not represent anyone in connection with a matter in which the lawyerparticipated personally and substantially as a judge or other adjudicativeofficer or law clerk to such a person, or as an arbitrator, mediator or otherthird-party neutral, unless all parties to the proceeding give informedconsent, 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 afirm with which that lawyer is associated may knowingly undertake or continuerepresentation in the matter unless:

(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) An arbitrator selected as a partisan of a party in amultimember arbitration panel is not prohibited from subsequently representingthat 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 also the fact thata former judge exercised administrative responsibility in a court does notprevent the former judge from acting as a lawyer in a matter where the judgehad previously exercised remote or incidental administrative responsibilitythat did not affect 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 former judges, lawyers who have served as arbitrators,mediators or other third-party neutrals may be asked to represent a client in amatter in which the lawyer participated personally and substantially. This Ruleprohibits such representation unless all of the parties to the proceedings givetheir informed consent, confirmed in writing. See Rule 1.0(f) and (b). Other law or codes of ethicsgoverning third-party neutrals may impose more stringent standards of personalor imputed disqualification. See Rule 2.4.

[3] Although lawyers who serve as third-party neutrals do not haveinformation concerning the parties that is protected under Rule 1.6, theytypically owe the parties an obligation of confidentiality under law or codesof ethics governing third-party neutrals. Thus, paragraph (c) provides thatconflicts of the personally disqualified lawyer will be imputed to otherlawyers in a law firm unless the conditions of this paragraph are met.

[4] Requirements for screening procedures are stated in Rule 1.0(o). Paragraph(c)(1) does not prohibit the screened lawyer from receiving a salary orpartnership share established by prior independent agreement, but that lawyermay not receive compensation directly related to the matter in which the lawyeris disqualified.

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

 

 

Effective May 1, 2019