Attorney Lee joins a law firm. Prior to joining, Attorney Lee was a neutral mediator in a complex business dispute between Company A and Company B. Now, Company A approaches Attorney Lee's new firm seeking representation in a lawsuit against Company B, arising from the very same business dispute that Attorney Lee mediated. What is the ethical obligation of Attorney Lee's new firm?
- AThe firm may represent Company A because Attorney Lee was a neutral, not an advocate, and did not represent either party.
- BThe firm is disqualified from representing Company A because Attorney Lee served as a neutral in the same matter.
- CThe firm may represent Company A if Company B provides informed consent, confirmed in writing.
- DThe firm may represent Company A if Attorney Lee is screened from any participation in the matter and receives no part of the fee.
Show answer & explanationAnswer & explanation
Correct answer: B. The firm is disqualified from representing Company A because Attorney Lee served as a neutral in the same matter.
Rule 1.12(a) directly addresses former judges, arbitrators, mediators, or other third-party neutrals. It states that a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a neutral. This is a non-waivable conflict for the individual lawyer. Furthermore, under Rule 1.12(c), this conflict is imputed to the entire firm unless specific conditions (screening, notice, no fee sharing) are met, but the question implies the firm is seeking representation *without* meeting these conditions.
Why the other options are wrong
- A. The fact that Attorney Lee was a neutral is precisely *why* the conflict exists under Rule 1.12. Neutrals gain confidential information and insights that cannot be used against a participant in the same matter.
- C. While consent can sometimes cure conflicts, the primary rule here is the disqualification of the individual lawyer from the 'same matter' as a former neutral. Consent from Company B alone doesn't automatically clear the firm if screening isn't mentioned.
- D. Screening is a mechanism to prevent imputation, but the question asks about the firm's obligation *before* such measures are explicitly taken. Without screening, the firm is disqualified. If screening *were* properly implemented, this could be a viable option, but the question implies a general inquiry about representation, not a specific inquiry about screened representation.
Duties to Former Judges, Arbitrators, Mediators, or Other Third-Party Neutrals
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 or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
- Applies to lawyers who acted as neutral third parties.
- Prohibits representation in the 'same matter' where they participated personally and substantially.
- Conflict is imputed to the firm unless the lawyer is screened, receives no part of the fee, and written notice is given to the appropriate tribunal and parties.
Memory trick: Mediators can't switch sides on the same dispute.