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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Delaware Legal Ethics

Rule 1.12 Former Judge or Arbitrator

1.12:100 Comparative Analysis of Delaware Rule

1.12.101 Model Rule Comparison

The text of the Delaware Rule is the same as the Model Rule.

1.12.102 Model Code Comparison

Rule 1.12(a) corresponds with DR 9-101(A), although Rule 1.12(a) is broader and allows for the giving of informed consent. 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." Also where DR 9-101(A) uses the term “merits,” Rule 1.12(a) uses the terms “participated personally and substantially.”

EC 5-20 discusses lawyers taking on the role of impartial arbitrator or mediator and states that once a lawyer has done so he “should not thereafter represent in the dispute any of the parties involved.” Rule 1.12(a) makes this a mandatory rule, but allows for waiver through informed consent.

There is no counterpart in the Model Code to Rule 1.12(b)-(d).

1.12.200 Former Judge or Arbitrator Representing Client in Same Matter

Comment [1] “This Rule generally parallels Rule 1.11. The term ‘personally and substantially’ signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term ‘adjudicative officer’ includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not ‘act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto.’ Although phrased differently from this Rule, those Rules correspond in meaning.” DLRPC Rule 1.12 cmt. 1.

Comment [2] “Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Rule 1.0(b)&(e). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 2.4.” DLRPC 1.12 cmt. 2.

In In re Lassen, the Court affirmed the Delaware Board on Professional Responsibility’s finding that Rule 1.12(a) did not bar a lawyer from representing another lawyer before the Board and the Court. Fourteen years previously, the representing lawyer had been chair of the Board when the same lawyer came before the Board on similar disciplinary matters. In re Lassen, 672 A.2d 988 (1996). It should be noted, however that this may no longer be good law in Delaware, as Rule 1.12 has been expanded to include a more inclusive notion of who fits under the term “third party neutral.”

In Stewart v. Watson, the Court mentioned, as a possible DLRPC Rule 1.12 conflict, that a father’s lawyer had been the master who signed an original child support consent order which was at issue. However, the Court did not discuss the issue as both sides agreed to consent to the representation. Stewart v. Watson, CN96-11719, 1998 Del. Fam. Ct. LEXIS 120, at *1-2 (Del. Fam. Ct. 1998).

1.12.300 Negotiating for Future Employment

DLRPC Rule 1.12(b) states, “[a] lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party 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. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.” DLRPC Rule 1.12(b).

1.12.400 Screening to Prevent Imputed Disqualification

Comment [4] “Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (c)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.”

DLRPC 1.12 cmt. 4.

Comment [5] “Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.” DLRPC 1.12 cmt. 5.

1.12.500 Partisan Arbitrators Selected by Parties to Dispute

DLRPC Rule 1.12(d) corresponds to the Model Rule and states “[a]n arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.” DLRPC Rule 1.12(d).