Model Rule 1.12(c) (2002) deals with the issue of imputed disqualification of other lawyers in the same office of a disqualified neutral former third party. The Model Rule (2002) involves a conflict with lawyers with whom a former neutral third party is associated, but such a conflict with respect to the former non-conflictual neutral third party can be resolved on two conditions: (i) the former neutral third party in conflict must be duly considered (see Rule 1.0(k), which defines what constitutes appropriate screening), and (ii) the parties and the competent court must be informed in writing. Rules 3.4(g)(2)(ii) of the Maine Bar (deals with credit and third-party neutral alumni) and 3.4(h)(7) (refer to credit and alumni mediators) involve the conflicts of interest of a former third party or neutral mediator, unless the conflicting attorney is properly examined, fees are not shared, and disclosure of circumstances and actions, taken to examine the conflicting lawyer will be communicated to all parties involved. The working group reviewed both Model Rule 1.12(c) (2002) and the Maine Bar Rules, which deal with credit, and recommended that a more protective client rule would better serve the citizens of Maine. Accordingly, the Working Group recommended that the parties concerned and any court of competent jurisdiction be required to confirm in writing their informed consent to waive the implied conflict. This letter must describe in detail the selection procedure that requires the client`s consent. 2. The parties and any court having jurisdiction shall be informed thereof without delay in writing so that they can establish compliance with the provisions of this Article. The Louisiana Supreme Court adopted this rule on January 20, 2004. It entered into force on 1 March 2004 and has not been amended since.
This rule is identical to the ABA model rule of Prof`l Conduct 1.12 (2013). Model Rule 1.12 contains a conflict of interest rule for former judges, arbitrators, mediators and other neutral third parties. On the other hand, paragraph 3.4(g)(2)(i) of the conflict-of-laws rule Mr. Bar R. provides for a conflict-of-laws rule for former judges and trainee lawyers, another for extrajudicial judicial officers and another for mediators (see M. Bar R. 3.4(h)). Under the rules of the Maine Bar, an attorney is prohibited from beginning to represent in a case in which he or she has personally and substantially participated as a judge or clerk, and such a prohibition cannot be lifted. On the other hand, conflicts of interest involving non-judicial judicial officers may be lifted with the consent of all parties to the disputed proceedings after clarification.
In addition, sections 3.4(h)(3) and (5) of the M. Bar Rule, which govern mediators, prohibit a lawyer acting as a mediator from representing any of the parties before the court or in the case in which the mediation is located or in any related matter. The Working Group discussed the structure and content of the Law Society of Maine Rules and Model Rule 1.12 and recommended the general prohibition on waiving any conflict of interest involving all neutral third-party counterparts. We find no legal basis in Professional Code 1.12 for the rejection of Judge D`Souza on the basis of the alleged failure [of the former trainee lawyer or her new registry] to inform [her opponents] in writing that Judge D`Souza`s trainee lawyer was recruited by [the new registry]. Rule 1.12 simply requires the [new] law firm [of a former clerk] to withdraw from [a party`s] representation before the judge, which it did in this case. A former clerk is permitted to join a law firm when cases are pending before the former clerk`s judge. Dussouy vs Dussouy, 220 Sun.3d 197 (La. Ct.
App. 4th Cir. 2017) (on the grounds that a refusal is not required if the former trainee of the presiding judge joins a law firm representing a party in a legal action pending before the judge). The court said:. . . For appropriate disciplinary sanctions for a lawyer`s failure to avoid conflicts of interest, see the notes to Louisiana Rule 1.7 above. (c) If an attorney is disqualified by paragraph (a), no attorney from a firm with which he or she is affiliated may knowingly represent or continue to represent the case unless: Louisiana Rule 1.12(b) prohibits a current judge or arbitrator from negotiating employment with an attorney who is “personally and substantially” involved in any ongoing matter. This conflict is unacceptable. In contrast, a current articling student may negotiate employment with a lawyer involved in a proceeding before the judge or arbitrator after the articling student has informed the judge or arbitrator. . (b) A lawyer may not negotiate employment with a person who is involved as a party or as counsel for a party in a matter in which the lawyer is personally and substantially involved as a judge or other arbitrator or as an arbitrator, mediator or other neutral third party.
A lawyer who serves as a trainee lawyer for a judge or other judicial officer may negotiate employment with a party or lawyer involved in a matter in which the employee is personally and substantially involved, but only after the lawyer has informed the judge or another judge. Louisiana Rule 1.12(a) generally prohibits a neutral former judge, arbitrator, trainee or third party from acting as an attorney in a matter in which the person has participated “personally and substantially” as an arbitration agent or law clerk. However, this conflict can be resolved by obtaining the consent of “all parties to the proceedings”. (a) Except in the cases referred to in subparagraph (d), a lawyer may not represent any person in a case in which he or she has been personally and substantially involved as a judge, other bailiff or registrar of such a person, or as an arbitrator, mediator or other neutral third party, unless all parties to the proceedings give their informed consent. confirmed in writing. The Working Group`s recommendation on paragraph (c)(2) differed from the Model Rule and required informed consent for the review of a former judge, arbitrator, mediator or other neutral third party. The recommendation was adopted by the Supreme Court. The requirement for confirmed written informed consent had an unintended consequence: by refusing consent – even without reason to challenge the alleged selection procedures – a counterparty could exercise an absolute veto against a law firm representing a client in a case in which a lawyer from that firm had previously participated personally as a judge, trainee lawyer, arbitrator or other arbitrator.
This amendment is not intended to diminish the approach to consumer protection. However, it should be clarified that opposing parties have the right to remedy perceived deficiencies only in screening procedures, and not an absolute right to refuse consent to the choice of the opponent`s lawyer. The notice to opposing parties and the court should include a description of the review conducted, which gives opposing parties and the court the opportunity to confirm compliance with the rule. Disagreements between the parties as to the adequacy of the review should be addressed to the competent court, which may be the court that decides on the matter being represented, the court that has previously engaged the judicial officer or trainee subject to this rule, or the judicial or supervisory authorities of lawyers. The Committee adopted the ABA Model Rule essentially verbatim for former judges and arbitrators, as it clearly provides more comprehensive guidance for bailiffs than DR 9-101 (A). However, the Committee decided not to extend these provisions to mediators and other neutral third parties, as these roles are distinct. (d) An arbitrator chosen as a supporter of a party in a multi-member arbitration panel shall not be prohibited from representing that party retrospectively. With regard to arbitrators and mediators, EC 5-20 states that “a lawyer who has undertaken to act as an impartial arbitrator or mediator. none of the parties concerned should be represented in the dispute. Dr. 9-101 (A) did not allow a waiver of the disqualification applied to former judges with the consent of the parties.
However, DR 5-105(C) was similar in force and could be interpreted as allowing for an exemption. In the amendments that came into force in paragraph (c) (1) on January 1, 2004, the word “in a timely manner” was added between “is” and “verified”; in point (c) in point 2, the words `parties and all` have been inserted between `the` and `reasonable` and `he` has been replaced by `they`; Added comments , , . .  Like former judges, lawyers who have acted as arbitrators, mediators or other neutral third parties may be asked to represent a client in a matter in which the lawyer has been personally and substantially involved. This rule prohibits such representation unless all parties to the proceedings give their informed written consent. See Rule 1.0 (e) and (b). Other laws or codes of ethics that govern neutral third parties may impose stricter standards for personal or controversial disqualifications. See Rule 2.4.
. (1) the disqualified lawyer is protected in good time from any involvement in the matter and no part of the fees is separated from it; and…  The requirements for screening procedures are set out in Rule 1.0(k). Clause (c) (1) does not prohibit a licensed lawyer from receiving a salary or share in a partnership determined by prior independent agreement, but the lawyer cannot receive compensation directly related to the matter in which the lawyer is disqualified. .