Conflicts of Interest · 12-18% of the exam
9.2.2Rule 1.12: Former judge, arbitrator, mediator, or other third-party neutral
On this page
- Rule 1.12(a) — General rule
Why
A former neutral turned private advocate for one side of a proceeding would undermine confidence in the adjudicative process.
Plain English
A former neutral can't represent anyone in connection with a matter they personally and substantially participated in. All parties to the original proceeding must consent in writing; the new client's agreement alone isn't enough.
Rule
Rule 1.12(a) — General rule
A lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as:
A judge or other adjudicative officer;
A law clerk to such a person; or
An arbitrator, mediator, or other third-party neutral;
unless all parties to the proceeding give informed consent, confirmed in writing.
Exceptions:
An arbitrator selected as a partisan of one party in a multimember arbitration panel is not prohibited from subsequently representing that party.
A former judge who exercised only remote or incidental administrative responsibility (assigning a case to another judge, signing a docket entry) without affecting the merits is not disqualified under this rule.
Rule 1.12(b) — No negotiating for employment while serving A judge, adjudicative officer, arbitrator, mediator, or other neutral shall not negotiate for employment with any person who is 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 for private employment with a party or counsel in the matter, but must first notify the judge or officer for whom the clerk works.
Rule 1.12(c) — Imputation If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
- The disqualified lawyer is timely screened and receives no part of the fee; and
- Written notice is promptly given to the parties and any appropriate tribunal.
Example 1
Ex. 1
Sara served as a federal circuit judge, heard expert testimony, issued rulings, and entered final judgment in a patent infringement trial. When the losing defendant, Tom, approached her new firm for representation on remand, Sara's personal disqualification was clear. The firm may represent Tom only if all parties give informed consent in writing; otherwise it must screen Sara in a timely way, withhold her share of the fee, and promptly give written notice to the parties and any appropriate tribunal. Split what Sara may do from what her firm may do; Tom's own approach settles neither.
Example 2
Ex. 2
Marco served as an American Arbitration Association (AAA) arbitrator in a three-party commercial lease dispute. After retiring, he joined a private litigation firm. The tenant approached the firm for representation in related litigation. The tenant and the landlord both gave written consent; the guarantor, Omar, refused. Under Rule 1.12(a), all parties to the original proceeding must consent. One party's refusal is dispositive regardless of the majority's agreement, and Marco remains personally disqualified. Name the three parties to the arbitration before you tally the consents; Omar is one of them.
The exam will tell you all parties except one have consented. All parties must consent; a majority is not enough.
The exam will describe a judge who reassigned a case in the first week. Reassignment and signing the initial docket entry is administrative, not personal and substantial participation; no disqualification follows.
The exam will reverse the employment-negotiation rule. The prohibition applies while serving; the law clerk must notify the judge before negotiating, not after.
Rule 1.12 notice: prompt written notice to the parties and any appropriate tribunal. Rule 1.11(b) notice: the appropriate government agency. Rule 1.10 notice: the former client.
Questions · 2
Q 01ch09-e05
Question 1 of 2 · Rule 1.12(a)
Attorney sat as one of three arbitrators in a dispute among a hotel owner, its general contractor, and the surety that had guaranteed the contractor's work. Attorney heard the evidence, questioned witnesses and joined the panel's award. Attorney was not chosen by any side as its own partisan on the panel. Two years later the hotel owner asked Attorney to act for it in a court action arising from the same construction failures. The owner and the contractor each gave informed consent, confirmed in writing; the surety refused to consent. Attorney entered an appearance for the owner anyway. Is Attorney subject to discipline?
Keys 1 to 4 choose.