Md. R. Att'y 19-302.4
Md. R. Att'y 19-302.4
COMMENT
[1] Alternative dispute resolution has become a substantial part of the civil justice system. Aside from representing clients in dispute-resolution processes, attorneys often serve as third-party neutrals. A third-party neutral is an individual, such as a mediator, arbitrator, conciliator or 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, evaluator or decision maker depends on the particular process that is either selected by the parties or mandated by a court.
[2] The role of a third-party neutral is not unique to attorneys, although, in some court-connected contexts, only attorneys are allowed to serve in this role or to handle certain types of cases. In performing this role, the attorney may be subject to court rules or other law that apply either to third-party neutrals generally or to attorneys serving as third-party neutrals. See Title 17 of the Md. Rules. Attorney-neutrals may also be subject to various codes of ethics, such as the Maryland Standards of Conduct for Mediators, Arbitrators and Other ADR Practitioners adopted by the Maryland Supreme Court or the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association.
[3] Unlike non-attorneys who serve as third-party neutrals, attorneys serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and an attorney's service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, section (b) of this Rule requires an attorney-neutral to inform unrepresented parties that the attorney 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 may be required. Where appropriate, the attorney should inform unrepresented parties of the important differences between the attorney's role as third-party neutral and an attorney's role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this section 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.
[4] An attorney who serves as a third-party neutral subsequently may be asked to serve as an attorney representing a client in the same matter. The conflicts of interest that arise for both the individual attorney and the attorney's law firm are addressed in Rule 19-301.12 (1.12).
[5] Attorneys who represent clients in alternative dispute-resolution processes are governed by the Maryland Attorneys' Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 19-301.0(p) (1.0)), the attorney's duty of candor is governed by Rule 19-303.3 (3.3). Otherwise, the attorney's duty of candor toward both the third-party neutral and other parties is governed by Rule 19-304.1 (4.1).
Model Rules Comparison: This Rule, newly added to the Model Rules by the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, is substantially similar to the ABA Rule, with the exception of changing "will" to "may" in the fifth sentence of Comment [3].