Advocating Before Neutrals

Advocating Before Neutrals

The comment to Rule 2.4, in Florida's version, ends by turning from the neutral to the lawyers who appear before her. A lawyer who represents a client in an alternative dispute resolution process remains bound by the Rules of Professional Conduct, and the kind of process decides which candor rule applies.¹ Before a tribunal, as in binding arbitration, candor is governed by Rule 3.3 (Florida's rule 4-3.3). In any other process, the lawyer's candor toward both the neutral and the other parties is governed by Rule 4.1 (Florida's rule 4-4.1).²

The sorting starts with the seat the lawyer occupies. A third-party neutral is a lawyer who assists two or more persons who are not her clients to resolve a dispute between them.³ A lawyer who acts for a client in the same proceeding is an advocate, and that definition does not describe her. The neutral and the advocate therefore owe different duties, and this section concerns the advocate's.

Binding arbitration falls on the tribunal side of the line. Rule 1.0(m) defines a tribunal to include "an arbitrator in a binding arbitration proceeding," so the rules that set a lawyer's duties when representing a client in adjudication apply to this formal if private proceeding just as they apply in court.⁴ The arbitrator's role explains the placement. She acts disinterestedly and equitably to resolve the dispute herself, where a mediator only facilitates the parties' voluntary resolution.⁵ Rule 3.3(a)(1), for example, forbids a lawyer to knowingly make a false statement of material fact or law to a tribunal, or to fail to correct such a statement the lawyer has already made.⁶ The full content of those advocate duties belongs to the advocate rules taught elsewhere. Here it is enough to see that an arbitrator who decides is what brings them into the process.

Mediation sits on the other side. The mediator, like the conciliator or other neutral who does not adjudicate, facilitates a resolution that the parties reach voluntarily.⁷ Rule 1.0(m) names only the arbitrator in a binding arbitration as a tribunal, and the comment sends every other process to Rule 4.1.⁸ The word binding does the work, so the neutral's title does not settle the question. What controls is whether the neutral decides with binding effect. Read literally, a session labeled arbitration in which the neutral can only recommend an outcome does not fit the definition, because the definition reaches an arbitrator in a binding proceeding.⁹

When an exam stem has a lawyer make a false statement during dispute resolution, first ask what kind of process it is, because the answer picks the rule.

Both lawyers are advocates bound by the Rules of Professional Conduct, and each made a false statement of material fact. The fact that moves the answer is whether the person receiving the statement can render a binding decision, since that power makes the recipient a tribunal.

The contrast restates the line this chapter began with. The neutral assumes a position of general neutrality toward all parties, and a lawyer-neutral must tell unrepresented parties that she is not representing them. When she knows or reasonably should know that a party misunderstands her role, she must explain how a neutral differs from a lawyer who represents a client.¹⁰ The lawyers who appear before her act for clients and answer to the candor rule that the process selects. Rule 2.4 does not itself address the arbitrator's other ethical responsibilities, but they are enforced indirectly through the constraints on the lawyers who participate in the arbitration.¹¹ One lawyer may sit in either seat on different days, but in any single matter she occupies only one. She is a neutral when she helps nonclients resolve their dispute, and an advocate when she acts for a client within it.