Md. R. Att'y 19-301.12

As amended through October 15, 2024

Rule 19-301.12 - Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral (1.12)

(a) Except as stated in section (d) of this Rule, an attorney shall not represent anyone in connection with a matter in which the attorney participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

(b) An attorney shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the attorney is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. An attorney serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the attorney has notified the judge or other adjudicative officer.

(c) If an attorney is disqualified by section (a) of this Rule, no attorney in a firm with which that attorney is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified attorney 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 this Rule.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

Md. R. Att'y 19-301.12

Adopted June 6, 2016, eff. 7/1/2016; amended April 21, 2023, eff. 7/1/2023.

COMMENT

[1] This Rule generally parallels Rule 19-301.11 (1.11). The term "personally and substantially signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as an attorney in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 19-301.11 (1.11).

[2] The term "adjudicative officer includes such officials as judges pro tempore, referees, special magistrates, hearing officers and other parajudicial officers, and also attorneys who serve as part-time judges. See Title 18, Chapter 200, Maryland Code of Conduct for Judicial Appointees.

[3] Like former judges, attorneys who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the attorney participated personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Rule 19-301.0(g) and (b) (1.0). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 19-302.4 (2.4).

[4] Although attorneys who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 19-301.6 (1.6), they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, section (c) of this Rule provides that conflicts of the personally disqualified attorney will be imputed to other attorneys in a law firm unless the conditions of this section are met.

[5] Requirements for screening procedures are stated in Rule 19-301.0(n) (1.0). Subsection (c)(1) of this Rule does not prohibit the screened attorney from receiving a salary or partnership share established by prior independent agreement, but that attorney may not receive compensation directly related to the matter in which the attorney is disqualified.

[6] Notice, including a description of the screened attorney's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

Model Rules Comparison: Apart from redesignating the sections of the Comments to this Rule, Rule 19-301.12 (1.12) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct.