N.M. R. Prof'l. Cond. 16-112

As amended through February 27, 2024

Rule 16-112 - Former judge, arbitrator, mediator or other third-party neutral

A.Subsequent representation in related matters. Except as stated in Paragraph D, a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator 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.Negotiation for employment. A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer or arbitrator may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.

C.Imputation of conflict to firm; screening. 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.Arbitrator. An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party.

N.M. R. Prof'l. Cond. 16-112

As amended by Supreme Court Order No. 08-8300-029, effective 11/3/2008.

Committee commentary. -

[1] This rule generally parallels Rule 16-111 NMRA of the Rules of Professional Conduct. 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 a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare Committee Commentary to Rule 16-111 NMRA of the Rules of Professional Conduct. The term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers and other para-judicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not "act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto". Although phrased differently from this rule, those rules correspond in meaning.

[2] Like former judges, 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, confirmed in writing. See Paragraphs E and B of Terminology of the Rules of Professional Conduct. Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 16-204 NMRA of the Rules of Professional Conduct.

[3] Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 16-106 NMRA of the Rules of Professional Conduct, 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.

[4] Requirements for screening procedures are stated in Paragraph K of Terminology of the Rules of Professional Conduct. Subparagraph (1) of Paragraph C 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.

[5] 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.

[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008.]

.

ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, added "mediator or other third-party neutral" to the title; in Paragraph A, added the language which prohibits a lawyer from representing anyone in a matter in which the lawyer participated substantially as an arbitrator, mediator or other third-party neutral unless all parties consent in writing; in Paragraph B, added the language which prohibits a lawyer from negotiating for employment with any person who is involved in a matter in which the lawyer is participating as an arbitrator, mediator or other third-party neutral; changed the title of Paragraph D from "Representation by firm" to the current title; in Subparagraph (1) of Paragraph C, added "timely"; and in Subparagraph (2) of Paragraph C, added "parties and any" and "them". Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary.