Why Neutrals Face Special Rules

Conflicts of Former Judges and Neutrals

Why Neutrals Face Special Rules

Rule 1.12 of the Model Rules of Professional Conduct governs lawyers who once held an impartial role: judges and other adjudicative officers, their law clerks, and arbitrators, mediators, and other third-party neutrals.¹ The rule needs its own logic because the familiar conflict rules assume something a neutral lacks.

Consider two lawyers who join the same firm. Dana spent five years representing a manufacturer. Judge Okafor spent five years on the bench, including settlement conferences in which the parties made revelations about their cases. A firm asking whether Dana may act against the manufacturer turns to Rule 1.9. A firm asking the same question about Judge Okafor finds that Rule 1.9 gives it little to work with, because she has no client from her judicial years.

Rule 1.9 is built on a past representation. It bars a lawyer who formerly represented a client in a matter from representing another person in the same or a substantially related matter when that person's interests are materially adverse to the former client's, unless the former client gives informed consent, confirmed in writing.² Each element of that bar presupposes a client relationship: a representation, a former client, and that client's consent. Service as a neutral creates no such relationship, so a different danger has to carry the weight.

The first danger is that a neutral who learned the parties' confidences will later align with one side. One court put the point in terms of judicial integrity: litigants must be able to trust that a judicial officer who was privy to revelations about the case in settlement conferences will not later become aligned with the opposition.³ The court distinguished a former private-sector attorney who holds governmental information. The former judge, by contrast, had become privy to the confidences of private parties to the litigation.⁴ Rule 1.12 therefore rests on integrity and confidentiality, not on the loyalty owed a former client.

The second danger arises while the neutral is still serving. Rule 1.11(d)(2) describes the risk for lawyers in public service who negotiate for private employment with a party involved in a matter they are handling: the lawyer may be improperly influenced when seeking a job from someone with an interest in that matter.⁵ The same source shows that Rule 1.12(b) addresses job negotiations by a law clerk to a judge, other adjudicative officer, or arbitrator, and that it requires notice to the judge, adjudicator, or arbitrator.⁶ So the rule reaches the lawyer's conduct during service as well as after it.

The remaining sections follow the order in which a problem arrives. They begin with the core bar on later representation, then ask who counts as a neutral and how involved that person must have been. Two exceptions follow: consent of all parties, confirmed in writing, and the narrow exception for an arbitrator selected as a party's partisan.⁷ Next come the ban on negotiating for employment while serving and the screening and notice provisions that let a firm continue when a newly hired former neutral is disqualified. The unit closes by comparing Rule 1.12 with Rules 1.11, 1.9, and 1.10 and with the judicial recusal rules, which govern when a sitting judge must step aside.