Most California lawyers know that after many years of work by the State Bar Commission for the Revision of Rules, The Cal Supremes approved 69 new /rules of Professional Conduct on May 10, 2018 and they become effective November 1, 2018. All the new rules are here. But as CBL publisher Bruce Nye devotes more of his time to providing mediation service, CBL wants to focus briefly on some rules that have received very little attention, relating to mediators and other third party neutrals.
First, there is new Rule 2.4, “Lawyer as Third-Party Neutral.” The key elements are these:
(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.
Then, there is new Rule 2.4.1, addressing temporary judges, referees and court-appointed arbitrators:
A lawyer who is serving as a temporary judge, referee, or court-appointed arbitrator, and is subject to canon 6D of the California Code of Judicial Ethics, shall comply with the terms of that canon.
Section 6D of the California Code of Judicial Ethics is quite exhaustive. And exhausting. And interestingly, the comments to the new rule state that the intention is to permit the State Bar to discipline lawyers violating the Code of Judicial Ethics while working as temporary judges, referees or court-appointed arbitrators, and also state that the rule doesn’t apply to a lawyer “serving as a third-party neutral in a mediation or a settlement conference, or as a neutral arbitrator pursuant to an arbitration agreement.”
And finally, there is the new Rule 1.12, indicating that judges, arbitrators, mediators and other third-party neutrals can’t later on represent one of the parties in the same matter, or seek employment in the matter in which the third-party neutral served substantially.
These rules are all a matter of common sense. But this is the first time the California State Bar has been able to discipline third-party neutrals for anything.
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