MRPC Rule 2.4

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who

are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen

between them. Service as a third-party neutral may include service as an arbitrator, a

mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve

the matter.

(b) A lawyer serving as a third-party neutral must inform unrepresented parties that the lawyer

is not representing them. When the lawyer knows or reasonably should know that a party

does not understand the lawyer’s role in the matter, the lawyer must explain the difference

between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents

a client.

Alternative dispute resolution has become a substantial part of the civil justice system. Aside

from representing clients in dispute-resolution processes, lawyers often serve as third-party

neutrals. A third-party neutral is a person, such as a mediator, an arbitrator, a conciliator, or an

evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or

in the arrangement of a transaction. Whether a third-party neutral serves primarily as a

facilitator, an evaluator, or a decision maker depends on the particular process that is selected by

the parties or mandated by a court.

The role of a third-party neutral is not unique to lawyers, although, in some court-connected

contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In

performing this role, the lawyer may be subject to court rules or other law that apply either to

Michigan Rules of Professional Conduct 56 Updated with MSC order(s)

third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals also

may be subject to various codes of ethics, such as the Code of Ethics for Arbitration in

Commercial Disputes prepared by a joint committee of the American Bar Association and the

American Arbitration Association, or the Model Standards of Conduct for Mediators jointly

prepared by the American Bar Association, the American Arbitration Association, and the

Society of Professionals in Dispute Resolution.

Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience

unique problems as a result of differences between the role of a third-party neutral and a lawyer’s

service as a client representative. The potential for confusion is significant when the parties are

unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform

unrepresented parties that the lawyer is not representing them. For some parties, particularly

parties who frequently use dispute-resolution processes, this information will be sufficient. For

others, particularly those who are using the process for the first time, more information will be

required. Where appropriate, the lawyer should inform unrepresented parties of the important

differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client

representative, including the inapplicability of the attorney-client evidentiary privilege. The

extent of disclosure required under this paragraph will depend on the particular parties involved

and the subject matter of the proceeding, as well as the particular features of the dispute -

resolution process selected.

A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer

representing a client in the same matter. The conflicts of interest that arise for both the

individual lawyer and the lawyer’s law firm are addressed in Rule 1.12.

Lawyers who represent clients in alternative dispute resolution are governed by the Michigan

Rules of Professional Conduct. When the dispute-resolution process takes place before a

tribunal, as in binding arbitration, the lawyer’s duty of candor is governed by Rule 3.3.

Otherwise, the lawyer’s duty of candor toward both the third- party neutral and other parties is

governed by Rule 4.1.

RULES 3.1–3.9. ADVOCATE.