2.4 Lawyer Serving as Third-Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer?s role in the matter, the lawyer shall explain the difference between the lawyer?s role as a third-party neutral and a lawyer?s role as one who represents a client.

(c) The role of third party neutral does not create a lawyer-client relationship with any of the parties and does not constitute representation of any of them. The lawyer shall not attempt to advance the interest of any of the parties at the expense of any other party.

(d) The lawyer shall not use any conduct, discussions or statements made by any party in the course of any alternative dispute resolution process to the disadvantage of any party to the process, or, without the informed consent of the parties, to the advantage of the lawyer or a third person.

(e) When acting as a mediator, the lawyer shall undertake such role subject to the following additional conditions:

(1) The lawyer must clearly inform the parties of the nature and limits of the lawyer?s role as mediator and should disclose any interest or relationship likely to affect the lawyer?s impartiality or that might create an appearance of partiality or bias. The parties must consent to the arrangement unless they are in mediation pursuant to a legal mandate.

(2) The lawyer may draft a settlement agreement or instrument reflecting the parties? resolution of the matter but must advise and encourage any party represented by independent counsel to consult with that counsel, and any unrepresented party to seek independent legal advice, before executing it.

(3) The lawyer shall withdraw as mediator if any of the parties so requests, or if any of the conditions stated in this subdivision (e) is no longer satisfied. Upon withdrawal, or upon conclusion of the mediation, the lawyer shall not represent any of the parties in the matter that was the subject of the mediation, or in any related matter.

COMMENT

[1] Alternative dispute resolution has become a substantial part of the civil justice system. Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decision-maker depends on the particular process that is either selected by the parties or mandated by a court.

[2] The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution.

[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer?s service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer?s role as third-party neutral and a lawyer?s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

[4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer?s law firm are addressed in Rule 1.12.

[5] Lawyers who represent clients in alternative dispute-resolution processes are governed by the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer?s duty of candor is governed by Rule 3.3. Otherwise, the lawyer?s duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1.

REPORTER?S NOTES:

Model Rule 2.4 (2002) addresses the professional obligations of a lawyer acting as a third party neutral. This Rule corresponds to, but is somewhat broader than, M. Bar R. 3.4(h), which addresses the obligations of a lawyer who is acting as a mediator. Given the breadth of potential alternative dispute resolution (ADR) services, and given the lack of specific definition among various types of ADR services, the Task Force recommended the adoption of the format and substance of Model Rule 2.4 modified to include the more specific rules related to mediation found in M. Bar R. 3.4(h)(1) - (6).

Rule 2.4(c) and (d) incorporate the specific language found in M. Bar R. 3.4(h)(2) and (d), broadened to apply to all alternative dispute resolution processes. These provisions make clear that a lawyer serving as a neutral does not enter into an attorney-client relationship with any of the parties to the ADR procedure and that a lawyer may not use any conduct, discussions or statements made by any party to the ADR process to the disadvantage of any other parties to such process.

The language set forth in Rule 2.4(e) describing the role and obligations of a lawyer acting as a mediator is derived from M. Bar R. 3.4(h), consistent with Maine Rule of Civil Procedure 16B. The prohibition against a lawyer engaging in the representation of a party who has appeared as part of the ADR process (see M. Bar R. 3.4(h)) is addressed in Model Rule 1.12 (2002).

The Task Force recommended the adoption of Rule 2.4, as set forth above. It incorporates not only the general provisions of the Model Rule (2002), but also elaborates upon them and includes the more specific mediation-related provisions of M. Bar R. 3.4(h).