Rule 18-103.9 - Service as Arbitrator or Mediator (Aba 3.9)(a) Unless expressly authorized by law, a judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge's official duties.(b) A senior judge may conduct alternative dispute resolution (ADR) proceedings in a private capacity only if the judge:(1) conducts no ADR proceedings in a private capacity relating to a case in which the judge currently is sitting;(2) is not affiliated with a law firm, regardless of whether the law firm also offers ADR services;(3) discloses to the parties in each judicial proceeding in which the judge sits: (A) the judge's professional association with any entity that is engaged in offering ADR services;(B) whether the judge is conducting, or has conducted within the previous 12 months, an ADR proceeding involving any party, attorney, or law firm involved in the judicial proceeding pending before the judge; and(C) any negotiations or agreements for future ADR services involving the judge and any of the parties or attorneys to the case; and(4) except when there is no disqualification by agreement as permitted by Rule 18-102.11(c), does not sit in a judicial proceeding in which the judge's impartiality might reasonably be questioned because of ADR services engaged in or offered by the judge.(c) An Orphans' Court judge, other than a judge sitting as an Orphans' Court judge in Montgomery County, Howard County, or Harford County, may conduct alternative dispute resolution (ADR) proceedings only if the Orphans' Court judge:(1) does not conduct ADR proceedings in matters within the jurisdiction of an Orphans' Court or that are related to the administration of an estate or guardianship;(2) does not use the judge's judicial office to further the judge's success in the practice of ADR; and(3) discloses to the parties in each ADR proceeding over which the judge presides, whether a party, attorney, or law firm involved in the ADR proceeding is or has been involved in an Orphans' Court proceeding before the judge within the past 12 months.Md. R. Jud. & Judi. Appts. 18-103.9
This Rule is derived from former Rule 3.9 of Rule 16-813(2016).
Adopted June 6, 2016, eff. 7/1/2016. Amended June 20, 2017, eff. 8/1/2017; amended April 5, 2024, eff. 7/1/2024.HISTORICAL NOTES
2017 Orders
The June 20, 2017 order, changed certain references from a retired judge approved for recall to a senior judge in section (b) and the Committee note and added a new section (c) to permit certain judges of the Orphans Court to conduct alternative dispute resolution proceedings under certain circumstances.
Committee note: A senior judge may affiliate with an entity that is engaged exclusively in offering ADR services but may not affiliate with any entity that also is engaged in the practice of law.
COMMENT
[1] Except as provided in section (b), this Rule does not prohibit a judge from participating in arbitration, mediation, or prehearing or settlement conferences performed as part of assigned judicial duties. Rendering dispute resolution services apart from those duties, whether or not for economic gain, is prohibited unless it is expressly authorized by law.