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Arizona Legal Ethics

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of Arizona Rule

1.12:101      Model Rule Comparison

The 2003 amendments expanded the coverage of the Rule to include arbitrators, mediators and other third-party neutrals. In addition, the consent required from parties to a prior adjudicative proceeding to avoid the limitations imposed by the Rule must now be "informed consent confirmed in writing."

AZ-ER 1.12 and its accompanying Comment are substantially identical to MR 1.12 and its accompanying Comment. Paragraph of the Comment to MR 1.12 does not contain the final sentence of paragraph 5 of the Comment to AZ-ER 1.12.

1.12:102      Model Code Comparison

AZ-ER 1.12(a) is substantially similar to DR 9-101(A), which provided that "A lawyer shall not accept employment in a matter upon the merits of which he has acted in a judicial capacity." AZ-ER 1.12(a) is broader than its Code counterpart, however, and identifies with more specificity the persons to whom it applies. With regard to former arbitrators, which AZ-ER 1.12 expressly includes within its scope, EC 5-20 provided that "a lawyer who has undertaken to act as an impartial arbitrator or mediator ... should not thereafter represent in the dispute any of the parties involved." In addition, DR 9-101(A) did not provide for a waiver of disqualification by consent of the parties; DR 5-105(C), however, could be construed to permit such a waiver in instances involving former judges and arbitrators.

There was no counterpart in the former Code to AZ-ER 1.12(b), (c) or (d).

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

AZ-ER 1.12(a) provides, in pertinent part, that a lawyer "shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral . . ." There are two exceptions to this prohibition: (1) where all parties to the proceeding give "informed consent confirmed in writing" (AZ-ER 1.12(a)), and (2) an arbitrator selected as a partisan of a party in a multi-member arbitration panel may subsequently represent that party in the matter (AZ-ER 1.12(d)). The Comment to the Rule explains that the term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers, other parajudicial officers, and lawyers who serve as part-time judges. In addition, use of the term "personally and substantially" is intended to signify that judges are not prevented from later serving as a lawyer in a matter pending before a multi-member court of which the judge was one member but in which the judge did not participate, or in matters in which the judge exercised only remote or incidental administrative responsibility that did not have a bearing on the merits of the matter.

In Security General Life Insurance Co. v. Superior Court, 149 Ariz. 322, the Court held, in an action brought by an insured, that the attorney representing the insurer was not disqualified by reason of AZ-ER 1.12 from serving in that capacity as a consequence of the fact that the attorney had previously served as the Director of the Department of Insurance during the period that the defendant insurer was being investigated by the Department for certain of the practices in issue in the litigation. The Court found that, while serving as Director, the attorney had merely signed and issued orders prepared by others, and that did not amount to the "personal or substantial involvement" required to warrant disqualification under the Rule. Id.

In Arizona Ethics Opinion No. 88-04, the Committee on the Rules of Professional Conduct ("the Committee") ruled that a law firm could not hire, as a consultant, a former Administrative Law Judge to assist in a continuing multi-jurisdictional action, if that individual had presided in a related proceeding in another jurisdiction. Because the Judge had heard evidence in that other, related proceeding, and issued a recommended decision, the Judge's involvement in the matter was both "personal" and "substantial."

In Arizona Ethics Opinion No. 84-02, which involved the application of former DR 9-101(A), a firm which employed a former Judge of the Superior Court was requested to undertake the representation of a defendant in a criminal case, and learned that the former Judge had ruled on several contested pretrial motions in the case, including a motion to remand the matter to the grand jury. The Committee ruled that the firm was required to decline the engagement, unless the client waived the right to appeal the former Judge's denial of the motion to remand, after being fully advised by independent counsel concerning the consequences of such a decision. (Former DR 9-101(A) did not contain the "screening" option provided by existing AZ-ER 1.12(c).)

1.12:300   Negotiating for Future Employment

AZ-ER 1.12(b) prohibits a lawyer from negotiating for employment with persons involved as a party or an attorney in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. The Rule permits a lawyer serving as a law clerk to a judge or other adjudicative officer to negotiate for employment with parties or attorneys involved in matters in which the clerk is participating personally and substantially, but only after the lawyer/law clerk has notified the judge or other adjudicative officer of an intention to do so.

In Arizona Ethics Opinion No. 89-01, the Committee on the Rules of Professional Conduct ("the Committee") ruled that a hearing officer is not permitted to negotiate for employment with any law firm representing a party in a matter before the hearing officer in which the officer's current participation could affect the merits. Relying on the Comment to AZ-ER 1.11, however, which recognizes that the ethical rules should not be so restrictively applied that transfer to and from government employment is inhibited, the Committee stated that the hearing officer could identify firms with which the officer was going to negotiate for employment and, during the period of such negotiations, disqualify herself from all matters coming before her where a client of any of the firms was a party or had an interest. The hearing officer must also agree that such matters were not to be discussed in her presence, and that she would not take part in the decision of such matters.

1.12:400   Screening to Prevent Imputed Disqualification

AZ-ER 1.12(c) provides that, if an individual lawyer is disqualified under subsection (a) of the Rule, "no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter," unless the "disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom," and written notice is given to the appropriate tribunal so it can ascertain compliance with the Rule. "Screened" is now defined, in AZ-ER 1.0(k), as denoting "the isolation of a lawyer from any participation in a matter through the timely disposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law." The Comment to this definition elaborates that: "[I]n order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening." Comment, AZ-ER 1.0, ˆ 10. There are no Arizona authorities that elaborate upon or apply the principle articulated in this particular Rule.

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

AZ-ER 1.12(d) provides that an "arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party." There are no Arizona authorities that elaborate upon or apply that principle.