Neutrals, government, and organizations - Lawyer as arbitrat...

Learning Outcomes

After studying this article, you will be able to explain the ethical rules governing lawyers who serve as arbitrators, mediators, or other third-party neutrals. You will understand the duties of disclosure, the prohibition on representing parties in the same matter without consent, and the requirements for screening and notice when a lawyer’s firm is involved. You will be able to apply these principles to MPRE-style questions.

MPRE Syllabus

For the MPRE, you are required to understand the professional responsibilities of lawyers acting as neutrals. This includes the ethical obligations when serving as an arbitrator, mediator, or other third-party neutral, and the restrictions on subsequent representation. You should be able to:

• Distinguish the lawyer’s role as a neutral from the role as an advocate.
• Identify the disclosure obligations to unrepresented parties in neutral proceedings.
• Recognize conflicts of interest arising from service as a neutral.
• Apply the rules prohibiting subsequent representation in the same matter without informed, written consent.
• Explain the requirements for screening and notice when a lawyer’s firm is disqualified due to a lawyer’s prior neutral service.
• Understand the exception for partisan arbitrators in multi-member panels.

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. When a lawyer serves as a mediator between two unrepresented parties, what must the lawyer do?
   1. Represent both parties zealously
   2. Inform the parties that the lawyer is not representing them
   3. Keep all information confidential from both parties
   4. Give legal advice to both parties
2. A lawyer served as an arbitrator in a dispute between Company A and Company B. After the arbitration, Company A asks the lawyer to represent it in a related lawsuit against Company B. May the lawyer accept?
   1. Yes, without restriction
   2. Yes, with the consent of Company A only
   3. Yes, if all parties to the arbitration give informed, written consent
   4. No, under any circumstances
3. If a lawyer is disqualified from representing a party due to prior service as a mediator, when may another lawyer in the same firm represent the party?
   1. Never
   2. Only if the disqualified lawyer is screened and written notice is given to all parties
   3. Only if the client consents orally
   4. Always, without restriction
4. Which of the following is an exception to the general prohibition on subsequent representation after serving as an arbitrator?
   1. The lawyer served as a partisan arbitrator in a multi-member panel
   2. The lawyer served as a mediator in a family law dispute
   3. The lawyer served as a judge in the matter
   4. The lawyer served as a law clerk in the matter

Introduction

Lawyers may serve as arbitrators, mediators, or other third-party neutrals to help resolve disputes between parties who are not their clients. The Model Rules impose specific ethical duties on lawyers acting in these neutral roles, including disclosure requirements, restrictions on subsequent representation, and conflict of interest rules. Understanding these obligations is essential for the MPRE.

Key Term: Third-Party Neutral
A lawyer who assists two or more persons to resolve a dispute or other matter between them, serving as an arbitrator, mediator, or in a similar capacity, and not as an advocate for any party.

The Lawyer’s Role as a Neutral

When acting as a neutral, a lawyer does not represent any party. Instead, the lawyer facilitates resolution without advocating for either side. This role is fundamentally different from representing a client.

Key Term: Arbitrator
A neutral decision-maker who hears evidence and arguments from parties and renders a binding decision, often in a private dispute resolution process.

Key Term: Mediator
A neutral facilitator who helps parties communicate and negotiate to reach a voluntary agreement, without issuing a binding decision.

Duty to Inform Unrepresented Parties

A lawyer serving as a third-party neutral must inform unrepresented parties that the lawyer is not representing them. If the lawyer knows or reasonably should know that a party does not understand the lawyer’s role, the lawyer must explain the difference between being a neutral and being an advocate.

Key Term: Disclosure (Neutrals)
The obligation of a lawyer acting as a neutral to clearly inform parties that the lawyer does not represent them and to clarify the limits of the lawyer’s role.

Conflicts of Interest and Subsequent Representation

A lawyer who has served as an arbitrator, mediator, or other third-party neutral in a matter must not later represent anyone in connection with that matter unless all parties to the proceeding give informed consent, confirmed in writing. This rule prevents the appearance of bias and protects the integrity of the neutral process.

Key Term: Informed Consent, Confirmed in Writing
Agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation, with the consent documented in writing.

Key Term: Screening
The isolation of a lawyer from any participation in a matter through timely procedures to protect confidential information, used to prevent conflicts of interest within a firm.

Firm Disqualification and Screening

If a lawyer is disqualified from representing a party due to prior service as a neutral, no lawyer in the same firm may undertake the representation unless:

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

Exception for Partisan Arbitrators

A lawyer who served as a partisan arbitrator in a multi-member arbitration panel may subsequently represent the party that appointed them. This exception recognizes the expectation of partiality in such roles.

Worked Example 1.1

A lawyer mediates a contract dispute between two businesses. After the mediation ends, one business asks the lawyer to represent it in a lawsuit against the other business over the same contract. Both parties participated in the mediation without counsel.

Question: May the lawyer represent the business in the lawsuit?

Answer:
No, unless both parties to the mediation give informed consent, confirmed in writing. Without such consent, the lawyer is prohibited from representing either party in the same matter after serving as a mediator.

Worked Example 1.2

A lawyer is appointed as a partisan arbitrator by Company X in a three-member arbitration panel. After the arbitration, Company X wants the lawyer to represent it in a related legal matter against the opposing party.

Question: Is the lawyer permitted to represent Company X?

Answer:
Yes. The Model Rules allow a partisan arbitrator in a multi-member panel to later represent the party that appointed them, even without the consent of the other party.

Worked Example 1.3

A lawyer at Firm A served as a mediator in a dispute. After the mediation, another lawyer at Firm A is asked to represent one of the parties in litigation about the same dispute. The mediator is screened from the case and receives no part of the fee. Written notice is given to all parties.

Question: Is this arrangement proper?

Answer:
Yes, provided the screening is effective and written notice is given promptly to all parties and, if relevant, to the tribunal. This allows the firm to represent the party without violating the conflict rules.

Exam Warning

Exam Warning: Do not confuse the rule for partisan arbitrators with the rule for mediators or neutral arbitrators. Only partisan arbitrators in multi-member panels are exempt from the general prohibition on subsequent representation.

Revision Tip

Revision Tip: Always check whether all parties have given informed, written consent before a lawyer who served as a neutral represents a party in the same matter.

Summary

Lawyers acting as arbitrators, mediators, or other third-party neutrals must inform parties that they do not represent them. After serving as a neutral, a lawyer may not represent anyone in the same matter unless all parties give informed, written consent, except for partisan arbitrators in multi-member panels. If a lawyer is disqualified, their firm may only represent a party if the lawyer is screened and notice is given.

Key Point Checklist

This article has covered the following key knowledge points:

• Lawyers as neutrals (arbitrators, mediators) do not represent any party.
• Neutrals must inform unrepresented parties that they are not acting as advocates.
• After serving as a neutral, a lawyer cannot represent anyone in the same matter without informed, written consent from all parties.
• Exception: Partisan arbitrators in multi-member panels may represent the appointing party.
• If a lawyer is disqualified, their firm may represent a party only if the lawyer is screened and written notice is given.
• Screening must be timely and effective, and the disqualified lawyer must receive no part of the fee.

Key Terms and Concepts

• Third-Party Neutral
• Arbitrator
• Mediator
• Disclosure (Neutrals)
• Informed Consent, Confirmed in Writing
• Screening