Current through Register Vol. 39, No. 6, September 16, 2024
(a) Except as stated in paragraph (d), 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 law clerk to such a person or as an arbitrator,
mediator or other third-party neutral, unless all parties to the proceeding
give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for
employment with any person who is involved as a party or as lawyer for a party
in a matter in which the lawyer is participating personally and substantially
as a judge or other adjudicative officer or as an arbitrator, mediator or other
third-party neutral. A lawyer serving as 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 participating personally and
substantially, but only after the lawyer has notified the judge or other
adjudicative officer.
(c) If a
lawyer is disqualified by paragraph (a), no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in the
matter unless:
(1) the disqualified lawyer is
timely screened from any participation in the matter; and
(2) written notice is promptly given to the
parties and any appropriate tribunal to enable them to ascertain compliance
with the provisions of this rule.
(d) An arbitrator selected as a partisan of a
party in a multimember arbitration panel is not prohibited from subsequently
representing that party.
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.
[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 unless all
of the parties to the proceedings give their informed consent, confirmed in
writing. See Rule 1.0(f) and (c). Other law or codes of ethics
governing third-party neutrals may impose more stringent 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(l). Paragraph (c)(1) does not prohibit the
screened lawyer from receiving a salary or partnership share established by
prior independent agreement nor does it specifically prohibit the receipt of a
part of the fee from the screened matter. However, Rule 8.4(c) prohibits the
screened lawyer from participating in the fee if such participation was
impliedly or explicitly offered as an inducement to the lawyer to become
associated with the firm.
[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. When disclosure is
likely to significantly injure the client, a reasonable delay may be
justified.
Authority
G.S.
84-23;
Eff. July 24,
1997;
Amended Eff. February 27,
2003.
