The Current Rules Of Professional Conduct Became Effective On November 1, 2018.
The following new rules pertain to arbitrators, mediators, or other third party neutrals:
Rule 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral;
Rule 2.4 Lawyer as Third-Party Neutral;
Rule 2.4.1 Lawyer as Temporary Judge, Referee, or Court-Appointed Arbitrator.
Rule 1.12(a) provides that lawyers shall not represent anyone in connection with a matter in which the lawyer "participated personally and substantially" as a judge, arbitrator, mediator, or other third-party neutrals, "unless all parties to the proceeding give informed written consent," and except as stated in paragraph (d).
Whereas Rule 1.12(a) applies to representation, Rule 1.12(b) applies to employment. If the lawyer participates "personally and substantially" as a judge, arbitrator, mediator, or other third-party neutral, the lawyer can't seek employment from any person involved as a party or as a lawyer for a party. However, judicial staff attorneys and law clerks can seek such employment, but only with the permission of the court.
Rule 1.12(c) disqualifies other attorneys in a law firm if one of the attorneys is disqualified from representation by paragraph (a), unless:
"(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."
Rule 1.12(d) provides that an arbitrator "selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party." Evidently the partisan arbitrator is expected to remain partisan.
A Comment to Rule 1.12 points out that "[o]ther law or codes of ethics governing third-arty neutrals may impose more stringent standards of personal or imputed disqualification. (See rule 2.4.)."
. . . which brings us to Rule 2.4, "Lawyer as a Third-Party Neutral." The lawyer serving as a third-party neutral must inform unrepresented parties that he is not representing them, and if the lawyer believes the unrepresented party does not understand the lawyer's role, then the lawyer must explain the difference between the lawyer as a third-party neutral and as an advocate.
Rule 2.4.1 provides that the lawyer acting as temporary judge, referee, or court-appointed arbitrator is subject to canon 6D of the California Code of Judicial Ethics, allowing the State Bar to discipline lawyers who violate the Code of Judicial Ethics while acting in a judicial capacity.
The distinction between 2.4 and 2.4.1 is that the first rule applies to the lawyer acting in a non-judicial functions whereas rule 2.4.1 refers to the lawyer acting in a judicial function. Thus, Rule 2.4 pertains to lawyers serving as third-party neutrals in a mediation, settlement conference, or arbitration pursuant to an arbitration agreement, whereas Rule 2.4.1 applies to judges, referees or court-appointed arbitrators.
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