Model Rule 1.12

Reporter's Explanation of Changes


1. Caption: Change to "Former Judge, Arbitrator, Mediator or Other Third-Party Neutral"

In the caption and thereafter throughout the Rule, terminology is modified to encompass a more expansive category of neutrals that participate in court-based and private dispute resolution.

2. Paragraph (a): Add other third-party neutrals

This paragraph has been modified to add mediators and other third-party neutrals. The term "arbitrator" was moved because arbitrators, like mediators and other third-party neutrals, typically do not have law clerks.

3. Paragraph (a): Change from "consent after consultation" to "give informed consent"

The Commission is recommending that throughout the Rules the phrase "consent after consultation" be replaced with "give informed consent," as defined in Rule 1.0(e). No change in substance is intended.

4. Paragraph (a): Consent "confirmed in writing"

The Commission recommends requiring that the consent here be confirmed in writing, as with other conflict-of-interest Rules. "Confirmed in writing" is defined in Rule 1.0(b).

5. Paragraph (b): Add references to other third-party neutrals

As with paragraph (a), the Commission has added references to mediators and other third-party neutrals and deleted "arbitrator" from the sentence addressing law clerks.

6. Paragraph (c): Nonconsensual screening of other third-party neutrals

Under the current Rule, the individual disqualification of a former judge or arbitrator under this Rule is not imputed to associated lawyers in a law firm if the conditions in (c)(1) and (2) are satisfied. The Commission determined that mediators and other third-party neutrals should be treated in the same manner because 1) there is typically less confidential information obtained in these proceedings than when the lawyer represents clients in a client-lawyer relationship and 2) although the third-party neutral usually owes a duty of confidentiality to the parties, it is not the same duty of confidentiality owed under Rule 1.6. The Commission also heard testimony that third-party neutrals do not share information with other lawyers in the firm in the same way that lawyers representing clients do. Finally, the Commission was concerned that failure to permit screening might inhibit the extent to which lawyers serve as third-party neutrals, particularly in voluntary, court-based alternative dispute resolution programs.

7. Paragraph (c)(1): Add "timely"

The Commission is recommending a definition of "screened" that includes a requirement that the lawyer be "timely" isolated from participation in the matter. Nevertheless, the Commission believes that the timeliness requirement is so important that it should appear in the text as well. This change is being recommended for all of the Rules that provide for screening. See Rules 1.10, 1.11 and 1.18.


[2] This Comment has been added to explain the textual addition to paragraph (a) of the Rule, i.e., its applicability to arbitrators, mediators and other third-party neutrals.

[3] This entirely new Comment explains the rationale for imputing the conflicts of a personally disqualified lawyer unless the requirements of paragraph (c) are met.

[4] This entirely new Comment addresses the requirements of paragraph (c)(1) and has a cross-reference to the definition of "screened" in Rule 1.0(k).

[5] This entirely new Comment addresses the requirements of paragraph (c)(2).