Following is the thirteenth in a series of posts about recent changes to the California Bar Association’s Rules of Professional Conduct (RPC), under the category of “Lawyer-Client Relations.” This post discusses a new rule related to “former judges, arbitrators, mediators, or other neutral third parties.”
As with other new RPC rules, Rule 1.12 does not directly correspond to a prior rule. It provides:
Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
(a) Except as stated in paragraph (d), 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, judicial staff attorney or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed written consent.
(b) A lawyer shall not seek employment from any person who is involved as a party or as lawyer for a party, or with a law firm for a party, in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third party neutral. A lawyer serving as a judicial staff attorney or law clerk to a judge or other adjudicative officer may seek employment from a party, or with a lawyer or a law firm* for a party, in a matter in which the staff attorney or clerk is participating personally and substantially, but only with the approval of the court.
(c) If a lawyer is prohibited from representation by paragraph (a), other lawyers in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter only if:
(1) the prohibition does not arise from the lawyer’s service as a mediator or settlement judge;
(2) the prohibited lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(3) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
Since Rule 1.12 does not replace any rules found in the CBA’s previous RPC, this is a brief overview rather than a comparison. Rule 1.12 has four parts. As set forth above, the first part, subd. (a), says a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other officer, or as an arbitrator or mediator, unless all involved parties give informed written consent. Subd. (b) says a lawyer shall not seek employment from anyone involved as a party, a lawyer for a party, or with a law firm for a party, in a matter where the lawyer is participating as a judge, officer, arbitrator, or mediator. Subd. (c) explains that IF a lawyer is prohibited from representation by subd. (a), the other lawyers in the same firm can knowingly take on or continue representation in the matter only if: the prohibition is not because the lawyer was a mediator or settlement judge; the prohibited lawyer is screened from participating in the matter and corresponding fee; and written notice is given to parties and the tribunal to affirm compliance with this rule. Subd. (d) states that an arbitrator serving on a multi-member arbitration panel as partisan of a party is not prohibited from later representing that party.
The only substantial difference between the American Bar Association (ABA)’s RPC and the CBA’s RPC is found in subd. (c). The ABA does not mention the fact that associated lawyers from the same law firm as the prohibited lawyer are not prohibited if the lawyer was not a mediator or settlement judge.
Benefit: Generally speaking, because this rule specifies that a lawyer is barred from representing a client if that lawyer previously served as a judge, arbitrator, or mediator in the related matter, the risk of a potential conflict of interest negatively affecting the client’s case has potentially been greatly reduced.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Taylor Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at 916/996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of Professional Conduct, Mediation, Arbitration, California Bar Association, American Bar Association, Legal Malpractice, Breach of Fiduciary, Client Rights