Texas Legal Ethics

1.12 Rule 1.12 Former Judge or Arbitrator

1.12:100 Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 1.11
• Background References: ABA Model Rule 1.12, Other Jurisdictions
• Commentary:

1.12:101 Model Rule Comparison

Texas Rule 1.11, "Adjudicatory Official or Law Clerk," is patterned after and generally similar to Model Rule 1.12, "Former Judge or Arbitrator." The rules focus on two principal concerns: (1) limiting the ability of a former adjudicatory official to represent private parties in matters in which he formerly served as an adjudicatory official, and (2) regulating the ability of adjudicatory officials and law clerks to negotiate for private employment with a party or lawyer for a party in a pending matter in which the adjudicatory official or clerk has participated personally and substantially. Model Rule 1.12 appears to identify in the text of the rule itself all persons subject to the rule; in the Texas Rules, "adjudicatory official" is a defined term set forth under the "Terminology" section immediately following the preamble.

The substance and focus of the respective rules are generally similar. Paragraph (a) of each rule addresses the ability of an adjudicatory official or law clerk to represent a private party in a matter in which he or she personally substantially participated. (Paragraph (d) of the Model Rule contains the express exception that an "arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party.")

Paragraph (b) of each rule regulates the ability of adjudicatory officials and law clerks to seek employment from parties or lawyers pending before them in matters in which they have participated personally and substantially; the respective provisions are similar.

Paragraph (c) of each rule addresses the scenario in which a lawyer personally disqualified under paragraph (a) goes to work in private practice with another lawyer or joins a firm. Paragraph (c) of each rule provides that the other lawyers will not be subject to disqualification if the personally disqualified lawyer is properly screened and satisfactory notice of the situation is given. The Model Rule contemplates notice to the "appropriate tribunal," while the Texas Rule calls for notice to "the other parties in the proceeding."

1.12:102 Model Code Comparison

DR 9-101(A) provides that a lawyer "shall not accept employment in a matter upon the merits of which he has acted in a judicial capacity," but is less explicit than the Texas Rule or Model Rule about identifying the persons to whom the restriction applies. DR 9-10(A) itself also appears to be silent on consent. EC 5-20 states a proposition similar to DR9-101(A) with respect to impartial arbitrators or mediators.

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

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

Paragraph (a) of Texas Rule 1.11 provides in full:

A lawyer shall not represent anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official or law clerk to an adjudicatory official, unless all parties to the proceeding consent after disclosure.

Texas Rule 1.11(a). For further discussion, see section 1.12:101.

1.12:300 Negotiating for Future Employment

• Primary Texas References: TX Rule 1.11(b)
• Background References: ABA Model Rule 1.12(b), Other Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL § 206, Wolfram § 8.10

Paragraph (b) of Texas Rule 1.11 provides in full:

A lawyer who is an adjudicatory official shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a pending matter in which that official is participating personally and substantially. A lawyer serving as a law clerk to an adjudicatory official may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the clerk has notified the adjudicatory official.

Texas Rule 1.11(b). For further discussion, see section 1.12:101.

1.12:400 Screening to Prevent Imputed Disqualification

• Primary Texas References: TX 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

Paragraph (a) of Texas Rule 1.11 provides in full:

Texas Rules 1.11(a).

Paragraph (c) of the rule in turn provides as follows:

If paragraph (a) is applicable to a lawyer, no other lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the lawyer who is subject to paragraph (a) is screened from participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the other parties to the proceeding.

Texas Rules 1.11(c).

1.12:500 Partisan Arbitrators Selected by Parties to Dispute

• Primary Texas References: TX Rule 1.11
• Background References: ABA Model Rule 1.12(d), Other Jurisdictions
• Commentary: ABA/BNA § 51:1501

For general discussion of this subject, see 1.12:101. The Texas Rules define an "Adjudicatory Official" as one who "serves on a Tribunal." Texas Rules Terminology. "Tribunal" is defined as follows:

any governmental body or official or any other person engaged in a process of resolving a particular dispute or controversy. "Tribunal" includes such institutions as courts and administrative agencies when engaging in adjudicatory or licensing activities as defined as applicable law or rules of practice or procedure, as well as judges, magistrates, special masters, referees, arbitrators, mediators, hearing officers and comparable persons empowered to resolve or to recommend a resolution of a particular matter; but it does not include jurors, prospective jurors, legislative bodies or their committees, members or staffs, nor does it include other governmental bodies when acting in a legislative or rule-making capacity.

Texas Rules Terminology (see as well the definition of "Adjudicatory Proceeding").