Me. R. Prof. Cond. 1.12
Me. R. Prof. Cond. 1.12
ADVISORY NOTE - OCTOBER 2014
The Task Force recommendation for subsection (c)(2) varied from the Model Rule, requiring informed consent for the screening of a former judge, arbitrator, mediator or other third-party neutral. The recommendation was adopted by the Supreme Judicial Court. The requirement of informed consent, confirmed in writing, created an unintended consequence: By withholding consent-even without any grounds for challenging the screening procedures adopted-an opposing party could exercise an absolute veto to a firm representing a client in a matter in which a lawyer in that firm previously participated personally as a judge, law clerk, arbitrator or other adjudicative officer. The present amendment is not meant to diminish a consumer protective approach. But it is meant to clarify that opposing parties have a right to address perceived shortcomings in screening procedures only, not an absolute right to withhold consent to an opponent's choice of counsel. Notice to opposing parties and the tribunal should include a description of the implemented screening, giving opposing parties and the tribunal the opportunity to confirm compliance with the Rule. Disagreements between parties as to the adequacy of screening should be addressed to the appropriate tribunal, which could be the tribunal adjudicating the matter that is the subject of the representation, the tribunal that formerly employed the judicial officer or law clerk subject to this Rule, or judicial or bar regulatory bodies.
COMMENT
[1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies 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 incidental 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. Part I, Section 1 of the Maine Code of Judicial Conduct provides that a justice, judge, active retired justice and active retired judge 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. Other law or codes of ethics governing third-party neutrals may also impose 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 directly 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.
REPORTER'S NOTES:
Model Rule 1.12 (2002), addressing conflicts of interest of former judges, arbitrators, mediators, referees and other third party neutrals, corresponds in substance to M. Bar R. 3.4(g)(2). The Task Force recommended the adoption of the structure of Model Rule 1.12 (2002), with some modification to reflect best Maine practices.
Model Rule 1.12 sets forth one conflict-of-interest rule for former judges, arbitrators, mediators and other third party neutrals. In contrast, M. Bar R. 3.4(g)(2)(i) dictates one conflicts rule for former judges and law clerks, another for non-judicial adjudicative officers, and yet another for mediators (see M. Bar R. 3.4(h)). Under the Maine Bar Rules, a lawyer is prohibited from commencing representation in a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk, and such prohibition may not be waived. In contrast, conflicts of interest involving non-judicial adjudicative officers may be waived, upon the informed consent of all parties to the proceeding at issue. Additionally, M. Bar R. 3.4(h)(3) and (5), setting forth rules applicable to mediators, prohibit a lawyer, while acting as a mediator, from representing any of the parties in court or in the matter under mediation or any related matter. The Task Force discussed the structure and substance of both the Maine Bar Rules and Model Rule 1.12, and recommended the blanket prohibition of waiver of all conflicts of interest involving all third party neutrals.
There is no provision in the Maine Bar Rules comparable to Model Rule 1.12(b) (2002) (addressing post-judicial employment or third-party neutral employment negotiation). The Task Force thought this was a positive addition and recommended its adoption.
Model Rule 1.12(c) (2002) addresses the issue of imputed disqualification of other lawyers in the same firm of a disqualified former third party neutral. Model Rule (2002) imputes a conflict to lawyers with whom a former third party neutral is associated, but such a conflict with respect to the non-conflicted former third-party neutral may be waived, subject to two conditions: (i) the conflicted former third party neutral must be properly screened (See Rule 1.0(k) defining what constitutes proper screening), and (ii) the parties and the appropriate tribunal must be given written notice. Maine Bar Rules 3.4(g)(2)(ii) (addressing imputation and former third party neutrals) and 3.4(h)(7) (addressing imputation and former mediators) imputes the conflicts of interest of a former third-party neutral or mediator, unless the conflicted lawyer is properly screened, fees are not shared, and disclosure of the circumstances and the measures taken to screen the conflicted lawyer is given to all affected parties. The Task Force considered both Model Rule 1.12(c) (2002) as well as the Maine Bar Rules addressing imputation, and recommended that a more client-protective rule would better serve the citizens of Maine. Thus, the Task Force recommended that the affected parties, and any appropriate tribunal be required to give its informed consent of the waiver of the imputed conflict, to be confirmed in writing. This writing must fully describe the screening procedure that requires the client's consent.