Different Roles of the Lawyer · 4-10% of the exam
18.3The neutral hat (Rules 2.4 and 1.12)
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- Rules 2.4 and 1.12 — Third-Party Neutral; Former Neutral
When a lawyer acts as mediator, arbitrator, or transactional neutral, neither party is a client. Two exam traps dominate: failing to warn unrepresented parties of that status, and later representing anyone in connection with that matter after the neutral role ends.
Why
A lawyer in the room usually belongs to somebody. A neutral belongs to no one, and a party who misreads that is confiding in a person they believe is on their side. The rules also keep the access a neutral has to both sides from turning into an advantage for one of them later on.
Plain English
A lawyer assisting two or more persons who are not clients to reach a resolution serves as a third-party neutral. Inform unrepresented parties that you are not representing them. Where you know or reasonably should know a party does not understand the role, explain the difference between neutral and counsel; and where appropriate you should also tell them that no attorney-client evidentiary privilege shields what the parties tell you (cmt [3]). While still serving, do not negotiate for employment with a party or a party's lawyer in that matter; a law clerk may, but only after notifying the judge.
Where you participated personally and substantially, you may not afterward represent anyone in connection with that matter without all parties' informed consent confirmed in writing; the firm's imputed conflict may be cured by proper screening:
- you are timely screened,
- no fee is apportioned to you, and
- written notice is promptly given to the parties and any appropriate tribunal.
An arbitrator selected as a partisan of a party in a multimember arbitration panel may afterward represent that party.
Rule
Rules 2.4 and 1.12 — Third-Party Neutral; Former Neutral
Rules 2.4 and 1.12 — Third-Party Neutral; Former Neutral (Rules 1.11–1.12 taught fully in Chapter 9)
A lawyer serves as a third-party neutral when assisting two or more persons who are not clients to reach a resolution — including arbitrators, mediators, and transactional neutrals.
Ordinary ethics rules continue to apply; professional organization codes may add obligations.
- Duty to warn unrepresented parties
The lawyer shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the role, the lawyer shall explain the difference between acting as neutral and acting as counsel. Where appropriate, the lawyer should also inform unrepresented parties of the important differences between the two roles, including that no attorney-client evidentiary privilege shields what the parties tell a lawyer wearing the neutral hat (cmt [3]).
- No employment negotiations while serving
A judge, adjudicative officer, arbitrator, mediator, or other neutral shall not negotiate for employment with any person involved as a party, or as lawyer for a party, in a matter in which the lawyer is participating personally and substantially. Law clerk exception: a law clerk may negotiate with a party or counsel in the matter, but only after notifying the judge or officer for whom the clerk works.
- Subsequent representation — personal conflict
A lawyer who served as a neutral must not thereafter represent anyone in connection with the matter, where the lawyer participated in it personally and substantially — the bar is not limited to the parties — unless all parties to the proceeding give informed consent, confirmed in writing.
- Imputed conflict at the firm
The conflict is imputed to other lawyers in the firm — but may be cured by proper screening:
- the disqualified lawyer is timely screened and
- apportioned no fee, and
- written notice is promptly given to the parties and any appropriate tribunal.
- Partisan arbitrator exception
A lawyer who served as a partisan arbitrator — one selected as a partisan of a party in a multimember arbitration panel — may thereafter represent that party as counsel; no conflict arises because the role was never neutral.
Tip
Example 1
Ex. 1
Hana served as a court-appointed mediator in a contract dispute between two commercial landlords. The mediation produced a partial settlement but left one damages question unresolved. Six months later, one of the landlords contacts Hana directly. That landlord asks her to serve as litigation counsel in a newly filed arbitration proceeding. The arbitration turns on the same unresolved damages question. Hana's firm also wants to staff the matter with other attorneys. Hana can't personally represent the landlord — all parties would need to provide informed consent confirmed in writing, and the other landlord hasn't agreed. The firm's other attorneys may handle the matter only if Hana is timely screened. Hana receives no fee from the engagement. All parties and the arbitration tribunal receive prompt written notice of the screen. Track what Rule 1.12 actually asks: not who the parties are, but whether this is the matter Hana mediated.
Trap
Questions · 3
Q 01ch18-e08
Question 1 of 3 · Rule 2.4(b)
Attorney was appointed to mediate a boundary dispute between Neighbor and a developer. The developer came with counsel; Neighbor came alone and had never sat in a mediation before. Neighbor twice called Attorney her lawyer during the first session and asked Attorney what she should accept. Attorney could see that Neighbor took him for her own counsel. Attorney answered that the session was going well, moved on to the next issue, and never said whether he represented Neighbor or explained how his role differed from that of a lawyer for a party. The mediation ended in a signed agreement. Is Attorney subject to discipline?
Keys 1 to 4 choose.