(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially as an arbitrator, mediator or other third party neutral.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.
(d) If a client requests in writing that the fact and subject matter of a representation subject to paragraph (a) not be disclosed by submitting the signed statements referred to in paragraph (c), such statements shall be prepared concurrently with undertaking the representation and filed with Bar Counsel under seal. If at any time thereafter the fact and subject matter of the representation are disclosed to the public or become a part of the public record, the signed statements previously prepared shall be promptly submitted as required by paragraph (c).
(e) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
Comment
[1] Lawyers who have served as arbitrators, mediators
or other third-party neutrals may be asked to represent a client in
a matter in which the lawyer participated personally and substantially.
This rule forbids such representation unless all of the parties to the
proceedings give their informed consent. For the definition of “informed
consent,” see Rule 1.0(e). Other law or codes of ethics
governing third-party neutrals may impose more stringent standards of
personal or imputed disqualification. See Rule 2.4.
[2] Although lawyers who serve as third-party neutrals
do not have information concerning the parties that is protected under
Rule 1.6, they typically owe the parties an obligation of confidentiality
under law or codes of ethics governing third-party neutrals. Thus, paragraph
(c) provides that conflicts of the personally disqualified lawyer will
be imputed to other lawyers in a law firm unless the conditions of this
paragraph are met.
[3] Requirements for screening procedures are stated
in Rule 1.0(l). Paragraph (c)(1) does not prohibit the screened lawyer
from receiving a salary or partnership share established by prior independent
agreement, but that lawyer may not receive compensation directly related
to the matter in which the lawyer is disqualified. See D.C. Bar Legal
Ethics Committee Opinion 279.
[4] Notice, including a description of the screened
lawyer’s prior representation and of the screening procedures
employed, generally should be given as soon as practicable after the
need for screening becomes apparent.
[5] With respect to statements filed with Bar Counsel
pursuant to paragraph (d), see Comments [8] and [9] to Rule 1.11.
