A lawyer is asked by a local government agency to serve as a third-party neutral to facilitate negotiations between the agency and a group of environmental activists regarding a proposed development project. The lawyer's firm previously represented the environmental activists in an unrelated matter five years ago. To accept this role, the lawyer must:
- ADisclose the prior representation to both the agency and the activists and obtain their informed consent.
- BDecline the role due to the prior representation creating an unavoidable conflict of interest.
- CAccept the role, but ensure all communications with the activists are strictly confidential.
- DAccept the role, as the prior representation is sufficiently remote to not create a conflict.
Show answer & explanationAnswer & explanation
Correct answer: A. Disclose the prior representation to both the agency and the activists and obtain their informed consent.
Even though a lawyer acting as a third-party neutral does not represent any party, the lawyer must still be impartial and avoid even the appearance of impropriety. A prior representation of one of the parties, even if remote and unrelated, could raise questions about impartiality. Therefore, the lawyer must disclose the prior representation to all parties and obtain their informed consent to proceed as a neutral.
Why the other options are wrong
- B. Declining is not strictly necessary if disclosure and consent can resolve the potential conflict; the rules generally favor disclosure first.
- C. Confidentiality with one party while acting as a neutral for multiple parties is impossible and undermines the neutral role.
- D. The remoteness doesn't automatically negate the need for disclosure and consent; the perception of impartiality is key.
Third-Party Neutral: Prior Relationships
A lawyer acting as a third-party neutral must disclose any prior relationships with any of the parties involved, and obtain their informed consent, to ensure continued impartiality and to avoid the appearance of impropriety.
- Disclosure required for prior relationships.
- Informed consent from all parties is essential.
- Maintain independence and impartiality.
Memory trick: Neutrals Need Not Neglect Notice, Needing Notarized Nods.