Government service and neutrals - Former judge, arbitrator, ...

Learning Outcomes

After reading this article, you will be able to identify when a former judge, arbitrator, mediator, or other third-party neutral is prohibited from representing a client in a matter, explain the requirements for consent and screening, and apply these principles to MPRE-style questions. You will also distinguish between the rules for neutrals and those for government lawyers.

MPRE Syllabus

For the MPRE, you are required to understand the ethical rules governing lawyers who previously served as judges, arbitrators, mediators, or other third-party neutrals. This article covers:

• The prohibition on representing clients in matters where the lawyer participated personally and substantially as a judge, arbitrator, mediator, or other neutral.
• The requirements for obtaining informed, written consent from all parties to overcome this prohibition.
• The rules for screening and notice when a disqualified lawyer joins a firm.
• The exceptions for partisan arbitrators.
• The duty to avoid negotiating for employment while serving as a neutral.
• The distinction between remote administrative involvement and personal, substantial participation.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A lawyer formerly served as a judge in a case. After leaving the bench, may the lawyer represent a party in a new proceeding challenging the judgment from that case?
   1. Yes, unless the lawyer’s conduct as judge is at issue.
   2. Yes, if all parties give informed, written consent.
   3. No, unless the lawyer’s former judicial role was purely administrative.
   4. Yes, if the lawyer did not preside over the trial.
2. Which of the following is required for a law firm to represent a client in a matter where a new partner is disqualified due to prior service as a mediator?
   1. The disqualified lawyer must be screened and receive no part of the fee, and written notice must be given to all parties.
   2. The disqualified lawyer must obtain oral consent from all parties.
   3. The disqualified lawyer must participate only in a minor way.
   4. The disqualified lawyer must have left the neutral role more than one year ago.
3. A lawyer served as a partisan arbitrator for a party in a three-member panel. After the arbitration, may the lawyer represent that party in a related court proceeding?
   1. No, unless all parties consent.
   2. Yes, this is an exception to the general rule.
   3. No, unless the lawyer is screened.
   4. Yes, but only if the lawyer did not draft the arbitration award.
4. While serving as a judge, a lawyer begins negotiating for employment with a law firm representing a party in a matter before the judge. Is this conduct proper?
   1. Yes, if the judge discloses the negotiations.
   2. Yes, if the judge recuses herself.
   3. No, this is prohibited.
   4. Yes, if the judge is not the presiding judge.

Introduction

Lawyers who previously served as judges, arbitrators, mediators, or other third-party neutrals face strict limitations on representing clients in matters where they were personally and substantially involved. These rules protect the fairness and integrity of the legal process and prevent conflicts of interest. The Model Rules of Professional Conduct set out specific requirements for former neutrals, including prohibitions, exceptions, and procedures for consent and screening.

Key Term: Personally and Substantially
Direct involvement of a lawyer in a matter to a significant extent, beyond peripheral or administrative participation.

Prohibition on Representation After Service as Neutral

A lawyer is generally prohibited from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

Key Term: Third-Party Neutral
A person, such as an arbitrator or mediator, who assists parties in resolving a dispute but does not represent any party as a client.

Consent Exception

The prohibition can be waived if all parties to the proceeding provide informed consent, confirmed in writing. This consent must be given after full disclosure of the circumstances and potential conflicts.

Key Term: Informed Consent, Confirmed in Writing
Agreement by a person to a proposed course of conduct after the lawyer has explained the material risks and alternatives, with the consent documented in writing.

Screening and Imputation to Firm

If a disqualified lawyer joins a law firm, the firm may still represent the client in the matter if:

• The disqualified lawyer is timely screened from any participation in the matter.
• The disqualified lawyer receives no part of the fee from the matter.
• Written notice is promptly given to all parties and, if applicable, the tribunal, so compliance can be verified.

Key Term: Screening
Procedures that isolate a disqualified lawyer from any participation in a matter to protect confidential information and prevent conflicts.

Exception for Partisan Arbitrators

A lawyer who served as a partisan arbitrator (selected to represent one party in a multi-member panel) is not prohibited from subsequently representing that party in the same matter.

Key Term: Partisan Arbitrator
An arbitrator chosen by one party in a multi-member arbitration panel, acting as that party’s advocate within the panel.

Scope of "Personally and Substantially"

The prohibition applies only if the lawyer’s involvement as a neutral was both personal and substantial. Remote, administrative, or minor involvement does not trigger the rule. For example, a judge who signed an order changing a courtroom but did not address the merits of the case is not personally and substantially involved.

Negotiation for Employment

A lawyer serving as a judge, arbitrator, mediator, or other neutral must not negotiate for employment with any party or lawyer involved in a matter in which the lawyer is participating personally and substantially. The only exception is for law clerks, who may seek employment after notifying their judge.

Application to Law Clerks and Staff

Law clerks and other staff who participated personally and substantially in a matter are subject to the same restrictions as judges and neutrals. They may not represent a client in that matter unless all parties consent in writing, or unless properly screened if joining a firm.

Worked Example 1.1

A lawyer served as a mediator in a business dispute between Company X and Company Y. After the mediation concluded, the lawyer joined a law firm. Company X asks the firm to represent it in a lawsuit arising from the same dispute. The lawyer is screened from the case, receives no part of the fee, and written notice is given to Company Y. Is the firm’s representation proper?

Answer:
Yes. If the lawyer is properly screened, receives no part of the fee, and written notice is given to all parties, the firm may represent Company X even though the lawyer is disqualified.

Worked Example 1.2

A former judge presided over a trial between Plaintiff and Defendant. After leaving the bench, the judge is asked to represent Defendant in a related appeal. All parties provide informed, written consent. Is this representation allowed?

Answer:
Yes. With informed, written consent from all parties, the former judge may represent Defendant in the matter.

Worked Example 1.3

A lawyer served as a partisan arbitrator for Employer in a three-member arbitration panel. After the arbitration, Employer asks the lawyer to represent it in a court action to confirm the arbitration award. Is this permitted?

Answer:
Yes. The rule prohibiting representation after service as a neutral does not apply to partisan arbitrators in multi-member panels.

Exam Warning

Be careful: The prohibition applies only to matters where the lawyer was personally and substantially involved as a neutral. Remote or administrative actions do not trigger the rule, but even a single significant act (such as presiding over a hearing or making a substantive ruling) does.

Revision Tip

Always check if all parties have given informed, written consent before a former neutral represents a client in a related matter. If not, screening and notice are required for the lawyer’s new firm.

Key Point Checklist

This article has covered the following key knowledge points:

• Former judges, arbitrators, mediators, and other neutrals are generally barred from representing clients in matters where they participated personally and substantially.
• The prohibition can be waived only if all parties give informed consent, confirmed in writing.
• If a disqualified lawyer joins a firm, the firm may act if the lawyer is screened, receives no fee from the matter, and written notice is given to all parties.
• Partisan arbitrators are excepted from the prohibition and may represent their party after the arbitration.
• Negotiating for employment while serving as a neutral in a matter is prohibited.
• The rule applies to law clerks and staff who participated personally and substantially in a matter.

Key Terms and Concepts

• Personally and Substantially
• Third-Party Neutral
• Informed Consent, Confirmed in Writing
• Screening
• Partisan Arbitrator