Attorney Lee previously served as a pro bono mediator in a dispute between Company X and Company Y. The mediation failed to resolve the dispute, and the parties are now proceeding to litigation. Company X approaches Attorney Lee to represent them in the litigation against Company Y. Attorney Lee did not gain any confidential information during the mediation beyond what was disclosed to both parties. Is Attorney Lee permitted to represent Company X?
- ANo, because serving as a mediator creates a perpetual conflict preventing representation of either party in any future matter.
- BNo, because a lawyer who has served as a mediator in a matter shall not thereafter represent anyone in connection with the same matter.
- CYes, because Attorney Lee did not gain any confidential information that was not already known to both parties.
- DYes, provided Company Y gives informed consent, confirmed in writing.
Show answer & explanationAnswer & explanation
Correct answer: B. No, because a lawyer who has served as a mediator in a matter shall not thereafter represent anyone in connection with the same matter.
Under Model Rule 1.12(a), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a mediator, arbitrator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. The lack of acquisition of confidential information beyond what was known to both parties does not negate this rule.
Why the other options are wrong
- A. The conflict is limited to the 'same matter,' not any future matter, and can be waived by consent.
- C. The rule about former third-party neutrals is not contingent on acquiring unique confidential information.
- D. While consent can sometimes cure this, the default is 'no' without it, and the question asks if it's 'permitted' without mentioning consent.
Former Third-Party Neutral Conflict
A lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
- Applies to the 'same matter' in which the lawyer served as a neutral.
- Requires 'personal and substantial' participation as a neutral.
- Can be waived by informed consent from all parties, confirmed in writing.
Memory trick: Once a fair judge, always neutral for that case; no picking sides later.