Model Rule 1.12: Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

When it applies

This arises when a lawyer leaves the bench, an arbitration panel, or a mediation practice and enters private practice, and someone tries to hire that lawyer (or the lawyer's new firm) in a matter the lawyer previously handled as a neutral. On the MPRE, it tests whether students can distinguish this rule from the former-government-lawyer rule (1.11) and the former-client conflict rule (1.9), and whether they know the screening/notice mechanics that avoid imputation.

What the rule requires

• A lawyer may not represent anyone in a matter in which the lawyer personally and substantially participated as a judge, other adjudicative officer, law clerk to such a person, arbitrator, mediator, or other third-party neutral, absent informed consent confirmed in writing from all parties.
• A law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is personally and substantially participating only after first notifying the judge or adjudicative officer.
• A lawyer serving as a neutral may not negotiate for employment with any party or lawyer involved in the matter while still serving, except a law clerk may negotiate for future employment if they first notify the judge or adjudicative officer.
• If a lawyer is personally disqualified under this rule, the lawyer's firm is imputedly disqualified unless the firm timely screens the disqualified lawyer, denies them any fee from the matter, and gives prompt written notice to the parties and tribunal to enable compliance monitoring.
• Informed consent must be confirmed in writing from all parties to the matter, not just the client seeking to hire the lawyer.

Exceptions

• Imputation to the firm can be avoided through timely screening, fee denial, and written notice, unlike some other imputation rules that require client consent instead.
• A law clerk may negotiate for employment with a party or lawyer in a matter on which the clerk is working, so long as the clerk first notifies the judge or other adjudicative officer.

How the MPRE tests Model Rule 1.12

• Students confuse this with Rule 1.11 (former government lawyers), but 1.12 covers judges/arbitrators/mediators/law clerks, not government employment; both rules use a similar screening, no-fee, and written-notice cure for imputation, but under 1.11 consent and notice run to the government agency, while under 1.12 consent comes from all parties and notice goes to the parties and any appropriate tribunal.
• Students forget that consent here must come from all parties to the former matter, not merely the new client, and must be confirmed in writing.
• Students miss that firm-wide imputation can be cured by screening alone (no client consent needed); this contrasts with imputed personal-interest or concurrent conflicts under 1.10, which screening cannot cure, although 1.10 does allow screening (with more detailed notice and certification requirements) for a laterally hired lawyer's former-client conflicts under 1.9.
• Students overlook the separate law clerk negotiation-notification requirement, distinct from the general prohibition on a sitting neutral negotiating for employment.