skip navigation
search

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


District of Columbia Legal Ethics

1.12   Rule 1.12 Third-Party Neutrals

1.12:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.12, DC Rule 1.11(a)
· Background References: ABA Model Rule 1.12, Other Jurisdictions
· Commentary:

1.12:101      Model Rule Comparison

Model Rule 1.12 imposes, in paragraph (a), a post-employment disqualification parallel to that imposed on former government lawyers by Model Rule 1.11(a), on lawyers who had previously served as a judge, arbitrator or "other adjudicative officer," or a law clerk to such a person, absent consent of all parties in the matter to which the disqualification applies. Paragraph (c) of the Rule, like Model Rule 1.11(b), imputes such a lawyer's disqualification to other lawyers associated with that lawyer in a firm, unless that lawyer is screened and appropriate notice is given to interested parties. In paragraph (b), Model Rule 1.12 also has a prohibition, parallel to that imposed by Model Rule 1.11(d)(2)(ii), on such a lawyer's negotiating for employment with a person who is involved as a party or as a lawyer for a party in a matter from which the lawyer would be disqualified. That paragraph also makes an exception from this prohibition for a  law clerk to a judge or other adjudicative officer, provided that the latter was given notice beforehand. The recommendations of the Ethics 2000 Commission, adopted in 2002, did not alter the basic structure of Model Rule 1.12, but did expand its scope, to apply to mediators and other third party neutrals as well as judges and arbitrators, and the title of the Rule was amended to mention them as well.

DC Rule 1.12 was from inception, and remains, quite different from its Model Rule counterpart.  It applied originally only to arbitrators, and more recently to other kinds of third-party neutrals, but not, like the Model Rule, to judges as well; under the DC Rules, the post-employment restrictions applicable to those who had previously acted in a “judicial or adjudicative capacity,” as well as their law clerks, were dealt with in Rule 1.11 (as they had been in the predecessor DR 9-101(B) of the DC Code) (see 1.11:101, above).  Until changed in 2006 as a result of recommendations by the Rules Review Committee, DC Rule 1.12 consisted entirely of just two brief paragraphs: paragraph (a) prohibited a lawyer who had served as an arbitrator from representing anyone in connection with a matter in which the lawyer had so served, absent consent; and paragraph (b) provided an exception to  paragraph (a)’s prohibition where the arbitrator was selected as a partisan of a party in a multimember arbitration panel. The DC Rule had no provision for imputation of the arbitrator’s disqualification (nor, necessarily, any provision for relief from imputation).  Nor did it have a provision, comparable to paragraph (b) of the Model Rule, prohibiting negotiation for employment with a party or a lawyer for a party to the arbitration in which the lawyer served as arbitrator.

The DC Rules Review Committee recommended a number of changes to the DC Rule that would bring the Rule closer to the Model Rule -- prime among them, that the provisions dealing with disqualification of former judges and their law clerks be moved from DC Rule 1.11 to 1.12; but this was the only substantive recommendation of that Committee that the Court of Appeals declined to adopt. The Committee also recommended, and the Court accepted, a broadening of paragraph (a) to make it apply to a former mediator or other third-party neutral, as well as a former arbitrator, and a corresponding change in the caption to the Rule. The Committee also recommended, and the Court accepted, the addition of three paragraphs: a new paragraph (b), addressing negotiating for employment and identical to the Model Rule's paragraph (b) except that (as accepted by the Court) it does not refer to judges or other adjudicative officers or their law clerks; a new paragraph (c) identical to the Model Rule counterpart, providing for imputation of a disqualification to other lawyers in the disqualified lawyer's firm, absent screening and appropriate notice; and a new paragraph (d), which has no parallel in the Model Rule, providing a procedure for avoiding, on request of the client, disclosure of the fact and subject matter of a representation to the parties and the relevant tribunal, which would otherwise be effectuated by the written notices now required by subparagraph (b)(2) of the rule. The key features of this procedure are that those notices are still prepared, but filed with Bar Counsel rather than sent to the parties and the tribunal, and that if the fact and subject matter otherwise become publicly disclosed, the notices must then be submitted as required by subparagraph (b)(2). The provision that had previously been paragraph (c), making an exception to the prohibition of paragraph (a) for arbitrators selected as a partisan of a party in a multimember arbitration panel, was relabeled as paragraph (e).

1.12:102      Model Code Comparison

Despite the 2006 changes in DC Rule 1.12, bringing it closer to the corresponding Model Rule [see 1.12:101, above], the DC Rule's prohibition on subsequent representation of a party to a previous adjudication still applies only to former arbitrators and other neutrals and not to former judges, who are still covered instead by DC Rule 1.11

There appear to be no pertinent DC court decisions or ethics opinions relating to DC Rule 1.12.

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

· Primary DC References: DC Rule 1.11
· Background References: ABA Model Rule 1.12(a), Other Jurisdictions
· Commentary: ABA/BNA § 91.4501

The DC Rule applies only to former arbitrators, not former judges, but the latter are covered by DC Rule 1.11. There appear to be no pertinent DC court decisions or ethics opinions relating to DC Rule 1.12.

1.12:300   Negotiating for Future Employment

· Primary DC References:
· Background References: ABA Model Rule 1.12(b), Other Jurisdictions
· Commentary: ABA/BNA § 91:4001, ALI-LGL § 125, Wolfram § 8.10

Prior to the changes made to DC Rule 1.12 in 2006 pursuant to recommendations of the DC Rules Review Committee [see 1.12:101, above], there was no provision in DC Rule 1.12 corresponding to paragraph (b) of the Model Rule, forbidding a lawyer serving as an arbitrator or other neutral from negotiating for future employment with a party to a pending proceeding; nor was there such a prohibition in either that Rule of DC Rule 1.11 applying such a prohibition to a judge. The 2006 amendments, however, inserted into DC Rule 1.12 a paragraph (b) identical to the corresponding paragraph of the Model Rule in its applying such a prohibition to arbitrators and other neutrals. That provision of the Model Rule applies also to judges and their clerks, and the DC Committee recommended that they be included also in the DC Rule, but this recommendation was not accepted by the Court. No such provision applying to judges or their law clerks is to be found in DC Rule 1.11 or elsewhere in the DC Rules.

1.12:400   Screening to Prevent Imputed Disqualification

· Primary DC References: DC Rule 1.11(c)
· Background References: ABA Model Rule 1.12(c), Other Jurisdictions
· Commentary: ABA/BNA § 91:4501, ALI-LGL §§ 203, 204, Wolfram § 7.6.4

Prior to the 2006 changes to DC Rule 1.12 [see 1.12:101, above], DC Rules had no provision corresponding to Model Rule 1.12(a), imputing, absent consent of all parties, the disqualification of a former arbitrator or other neutral pursuant to paragraph (a) of that Rule -- nor, necessarily, any provision similar to paragraph (c), setting out procedures for relief from such imputation. In 2006, however, DC Rule was brought into conformity with its Model Rule counterpart insofar as the treatment of former arbitrators and other neutrals were concerned. These changes did not, however, also extend to former judges, who remained subject to similar provisions, but in DC Rule 1.11 rather than 1.12.

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

· Primary DC References: DC Rule 1.12(b)
· Background References: ABA Model Rule 1.12(d), Other Jurisdictions
· Commentary: ABA/BNA § 51:1501

DC Rule 1.12, like its Model Rule counterpart, has always made an exception, from the prohibition on a lawyer representing any party to a matter in which the lawyer served as arbitrator (absent consent of all the parties thereto) for a lawyer who served as a partisan of a party in a multimember arbitration subsequently representing that party. That prohibition is in paragraph (a) of both the DC Rule and the Model Rule; the exception is now in paragraph (e) of the DC Rule and paragraph (d) of the Model Rule.