Ind. Prof. Cond. Rule 1.12

Third-Party Neutral

Effective January 1, 2005

(a) Except as stated in paragraph (d), 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, arbitrator, mediator or other third-party neutral, or law clerk to such a person, unless all parties to the proceeding give informed consent, confirmed in writing.

(b) 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 any such person 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 law clerk's employer.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is

associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is

apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable

them to ascertain compliance with the provisions of this rule.

(d) An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not

prohibited from subsequently representing that party.

Comment

[1] This Rule generally parallels Rule 1.11. The term “personally and substantially” sig-

nifies 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 incid-

ental 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. The Indiana Code of Judicial Conduct provides 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.

[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(e) and (b). Other law or codes of ethics governing third-party neutrals may impose

more stringent standards of personal or imputed disqualification. See Rule 2.4.

[3] Although lawyers who serve as third-party neutrals do not have information concerning

the parties that is protected under Rule 1.6, they typically owe the parties an obligation of

confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will be imputed to

other lawyers in a law firm unless the conditions of this paragraph are met.

[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 dir-

ectly related to the matter in which the lawyer is disqualified.

[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.