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Louisiana Legal Ethics

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of Louisiana Rule

¥ Primary Louisiana References: LA Rule 1.12
¥ Background References: ABA Model Rule 1.12, Other Jurisdictions
¥ Commentary:

1.12:101      Model Rule Comparison

LRPC 1.12(a), like MR 1.12(a), prevents a lawyer from representing someone, in a private capacity, in a matter in which he participated as a Òjudge or other adjudicative officer, arbitrator or law clerkÓ unless all parties consent. LRPC 1.12(a) is distinguishable from MR 1.12(a) in that it requires disclosure before the parties consent. MR 1.12(a) requires consultation before the parties consent.

Both LRPC 1.12(b) and MR 1.12(b) allow a law clerk to negotiate for private employment with those involved in matters in which the lawyer, as clerk, is participating when the judicial officer has notice. The text of LRPC 1.12(c) and (d) is identical to that in its counterpart, MR 1.12(c) and (d).

1.12:102      Model Code Comparison

LRPC 1.12(a) prevents a lawyer from representing a party in substantially the same matter in which he participated as a judge or adjudicative officer, arbitrator or judicial clerk. LRPC 1.12(d), an exception, allows the lawyer who served as one of a panel of arbitrators to later participate in representation of a party in the matter. Once involved as a mediator or arbitrator, the Model Code advises that the lawyer should not subsequently represent any of the parties in the matter. EC 5-20. DR 9-101(A) and (B) also preclude a lawyer from becoming involved in a matter in which he acted in a judicial capacity or for which he had substantial responsibility while a public employee.

Although the Model Code prevents any judge from subsequently becoming involved in these matters, LRPC 1.12(a) disqualifies only those judges who participated personally and substantially. Despite the disqualification imposed by LRPC 1.12, Paragraph (a) permits all parties involved to consent to the involvement of a former judge, arbitrator or law clerk. The Model Code is more restrictive, preventing, in DR 9-101(A) and (B), any lawyer who previously performed an adjudicative function in a matter from accepting any private employment in the same matter. Although this would seemingly preclude the same disqualified lawyer from participating in mediation of the issue, EC 5-20 allows a lawyer who was formerly involved in a matter, regardless of his capacity, to subsequently serve as a mediator or arbitrator after full disclosure to the parties. LRPC 1.12(a) only prevents the lawyer from becoming involved by representing a party.

LRPC 1.12(b) prevents any lawyer serving as a judge, adjudicative officer or arbitrator from negotiating for private employment with an attorney he is personally and substantially involved with while in his public capacity. A law clerk may negotiate for such employment only after the judge or judicial officer has been notified. The Model Code does not address this situation, where the judicial officer has not left his public post. The Model Code only regulates the behavior of attorneys after their public service has ended.

LRPC 1.12(c) prevents those lawyers associated in a firm with any lawyer disqualified by this Rule from knowingly representing a party in this matter unless the disqualified lawyer is screened from participation and receives no fee. The tribunal must also receive written notice of the situation. DR 5-105(D) is broader, barring a firm, or any other lawyer associated with the disqualified lawyer, from representing a party in the matter. Unlike LRPC 1.12(c), the Model Code does not provide any exceptions for the firm to avoid its disqualification from this matter.

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

¥ Primary Louisiana References: LA Rule 1.12(a)
¥ Background References: ABA Model Rule 1.12(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91.4501

This section has not yet been completed.

1.12:300   Negotiating for Future Employment

¥ Primary Louisiana References: LA Rule 1.12(b)
¥ Background References: ABA Model Rule 1.12(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤ 206, Wolfram ¤ 8.10

This section has not yet been completed.

1.12:400   Screening to Prevent Imputed Disqualification

¥ Primary Louisiana References: LA Rule 1.12(c)
¥ Background References: ABA Model Rule 1.12(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4501, ALI-LGL ¤¤ 203, 204, Wolfram ¤ 7.6.4

This section has not yet been completed.

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

¥ Primary Louisiana References: LA Rule 1.12(d)
¥ Background References: ABA Model Rule 1.12(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1501

This section has not yet been completed.