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Rule 2.4. Lawyer Serving as Third-Party Neutral.

(a) A lawyer serves as athird-party neutral when the lawyer assists two or more persons who are notclients of the lawyer to reach a resolution of a dispute or other matter thathas arisen between them. Service as a third-party neutral may include serviceas an arbitrator, a mediator or in such other capacity as will enable thelawyer to assist the parties to resolve the matter.

(b) A lawyer serving as athird-party neutral shall inform unrepresented parties that the lawyer is notrepresenting them. When the lawyer knows or reasonably should know that a partydoes not understand the lawyer's role in the matter, the lawyer shall explainthe difference between the lawyer's role as a third-party neutral and alawyer's role as one who represents a client.

(c) A lawyer serving as amediator in a mediation in which the parties havefully resolved all issues:

(c)(1) may prepare formal documents thatmemorialize and implement the agreement reached in mediation;

(c)(2) shall recommend that each partyseek independent legal advice before executing the documents; and

(c)(3) with the informed consent of allparties confirmed in writing, may record or may file the documents in court,informing the court of the mediator's limited representation of the parties forthe sole purpose of obtaining such legal approval as may be necessary.


[1] Alternative disputeresolution has become a substantial part of the civil justice system. Asidefrom representing clients in dispute-resolution processes, lawyers often serveas third-party neutrals. A third-party neutral is a person, such as a mediator,arbitrator, conciliator or evaluator, who assists the parties, represented orunrepresented, in the resolution of a dispute or in the arrangement of atransaction. Whether a third-party neutral serves primarily as a facilitator,evaluator or decisionmaker depends on the particularprocess that is either selected by the parties or mandated by a court.

[2] The role of a third-partyneutral is not unique to lawyers, although, in some court-connected contexts,only lawyers are allowed to serve in this role or to handle certain types ofcases. In performing this role, the lawyer may be subject to court rules orother law that apply either to third-party neutrals generally or to lawyersserving as third-party neutrals. Lawyer-neutrals may also be subject to variouscodes of ethics, such as the Code of Ethics for Arbitration in CommercialDisputes prepared by a joint committee of the American Bar Association and theAmerican Arbitration Association or the Model Standards of Conduct forMediators jointly prepared by the American Bar Association, the AmericanArbitration Association and the Society of Professionals in Dispute Resolution.

[3] Unlike nonlawyerswho serve as third-party neutrals, lawyers serving in this role may experienceunique problems as a result of differences between the role of a third-partyneutral and a lawyer's service as a client representative. The potential forconfusion is significant when the parties are unrepresented in the process.Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented partiesthat the lawyer is not representing them. For some parties, particularlyparties who frequently use dispute-resolution processes, this information willbe sufficient. 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 athird-party neutral subsequently may be asked to serve as a lawyer representinga client in the same matter. The conflicts of interest that arise for both theindividual lawyer and the lawyer's law firm are addressed in Rule 1.12.

[5] Lawyers who represent clientsin alternative dispute-resolution processes are governed by the Rules ofProfessional Conduct. When the dispute-resolution process takes place before atribunal, as in binding arbitration (see Rule 1.0(o), the lawyer's duty ofcandor is governed by Rule 3.3. Otherwise, the lawyer's duty of candor towardboth the third-party neutral and other parties is governed by Rule 4.1.

[5a] Rule 2.4(c) is intended topermit a lawyer-mediator for parties who have successfully resolved all issuesbetween them to draft a legally binding agreement and, to the extent necessaryor appropriate, record or file related papers or pleadings with an appropriatetribunal. In so doing, the lawyer will be jointly representing the parties intheir common goal of effecting proper legal filings or obtaining judicialapproval of their fully resolved issues. Because the parties in this situationhave fully resolved their issues, they are not considered "adverse"under Rule 1.7(a)(1). ABA Model Rule 2.4 does notaddress the lawyer's drafting of documents to implement the parties' agreement.


Effective November 1, 2017