(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.
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 applies 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 non-lawyers 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 proceedings, 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(n)), 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.
