Reporter's Explanation of Changes
The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.
1. Paragraph (a): Define "third-party neutral"
Paragraph (a) defines the term "third-party neutral" and emphasizes assistance at the request of the parties who participate in the resolution of disputes and other matters.
2. Paragraph (b): Inform parties of nature of lawyer's role
Paragraph (b) requires the lawyer serving as a third-party neutral to inform unrepresented parties in all cases that the lawyer does not represent them. The potential for confusion is sufficiently great to mandate this requirement in all cases involving unrepresented parties. Consistent with the standard of Rule 4.3, paragraph (b) requires the lawyer to explain the differences in a lawyer's role as a third-party neutral and the role of a lawyer representing a party in situations where the lawyer knows or reasonably should know that the unrepresented party does not understand the lawyer's role as a third-party neutral.
 This introductory Comment describes dispute-resolution processes and notes that the specific role of the third-party neutral may depend on whether the process is court-annexed or private.
 This Comment cross-references other law and ethics codes applicable to lawyers serving as third-party neutrals. The Commission believes the referenced material will be helpful to lawyers unfamiliar with existing standards in this area.
 This Comment explains the rationale for the requirement of paragraph (b) that lawyers inform unrepresented parties that the lawyer is not representing them and, in some cases, explain the differences between the lawyer's role as neutral and the role of a lawyer representing a party.
 This Comment cross-references Rule 1.12, which addresses the conflicts of interest that arise when a lawyer-neutral or that lawyer's firm is asked to represent a client in a matter that is the same as a matter in which the lawyer served as a third-party neutral.
 This Comment distinguishes between the lawyer's duty of candor in an arbitration and in other dispute resolution proceedings. Because a binding arbitration is a "tribunal" as defined in Rule 1.0(m), the lawyer's duty of candor in such a proceeding is governed by Rule 3.3. In other dispute-resolution proceedings, the lawyer's duty of candor toward the third-party neutral and the other parties is governed by Rule 4.1.