Simon on New Rules: Rule 1.9 Through 1.12 —Conflict Rules

By Roy Simon

[Originally published in NYPRR July 2009]

This month’s column continues my series on the new New York Rules of Professional Conduct. This section begins with Rule 1.9 and ends with Rule 1.12.

Rule 1.9: Duties to Former Clients

Rule 1.9, entitled “Duties to Former Clients,” states the basic and familiar principles regarding duties to former clients. Rule 1.9(a) states:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. [All emphasis added to the Rules here and below is noted in italics.]

The rule is thus virtually identical to its Code predecessor, DR 5-108(A), but with one important new feature: the former client’s consent must be “confirmed in writing.” I have already discussed this requirement in my commentary on the general rule on conflicts of interest with current clients (Rule 1.7), which also requires that client consent be confirmed in writing, and I have discussed the new definition of “confirmed in writing” that has been added to the Terminology provisions as Rule 1.0(e). I mention the writing requirement again here because Rule 1.9(a) looks so familiar that it is easy to overlook those three crucial words at the end.

Thus, whenever a former client graciously grants consent for you to represent a different person in the same or substantially related matter, and the new client’s interests are materially adverse to your former client’s interests, you must confirm that oral consent in writing — a writing from the former client to you, or from you to the former client, or on the record in open court.

Rule 1.9(b), which applies when a lawyer did not personally represent an adverse party but his former firm did, is likewise nearly identical to its Code cousin, DR 5-108(B), but it adds the same requirement that the former client’s consent be “confirmed in writing.” Thus, when a law firm hires a lateral lawyer, every consent obtained pursuant to Rule 1.9(a) or (b) from a former client of the lateral or the lateral lawyer’s former firm must be confirmed in writing.

Rule 1.9(c), however, differs visibly from its Code predecessor. Rule 1.9(c) provides as follows:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use confidential information of the former client protected by Rule 1.6 to the disadvantage of the former client, except as these Rules would permit or require with respect to a current client or when the information has become generally known; or

(2) reveal confidential information of the former client protected by Rule 1.6 except as these Rules would permit or require with respect to a current client.

Rule 1.6, in turn, permits a lawyer to “reveal or use confidential information to the extent that the lawyer reasonably believes necessary” in six specified situations.

DR 5-108(A)(2), in contrast, prohibited “use” but did not expressly state whether a lawyer could “reveal” protected information. I always assumed that to “reveal” information was to “use” it, so in my view the addition in Rule 1.9(c) does not change the law. Nevertheless, the addition of the “reveal” subparagraph is important, for two reasons.

First, the new formulation tracks ABA Model Rule 1.9(c). If the courts had adopted the “use” subparagraph but not the “reveal” subparagraph, maybe some lawyers (especially those from other states) would have gotten the mistaken impression that New York had rejected the ABA prohibition on revealing a former client’s confidential information. Second, and far more important, the “use” provision significantly differs from the “reveal” provision. Rule 1.9(c)(1) prohibits the “use” of confidential information only “to the disadvantage of the former client,” whereas Rule 1.9(c)(2) bars a lawyer from “reveal[ing]” a former client’s confidential information unless Rule 1.6 would permit the lawyer to reveal that information regarding a current client. Rule 1.6, in turn, prohibits a lawyer from revealing confidential information “to the disadvantage of a client or for the advantage of the lawyer or a third person” unless an exception applies — the same language found in old DR 4-101(B).

Thus, Rule 1.9(c) recognizes that a lawyer may use information for the advantage of the lawyer or a third person as long as this use is not to the disadvantage of the client. For example, if a lawyer handles an antitrust case in the health care industry, and learns all about the structure and customs of the industry — many of which are not generally known — the lawyer may “use” all of this information to advance the interests of the new client and third persons (such as the lawyer’s partners) as long as this does not work to the disadvantage of the lawyer’s former client. But the lawyer may not “reveal” the information unless Rule 1.6 would allow such revelation if the former client were still a current client.

Rule 1.10: Imputed Disqualification

Rule 1.10 is the new imputed disqualification rule — but there is very little new about it. The big news about Rule 1.10 is the dog that did not bark in the night (see Arthur Conan Doyle, The Adventure of Silver Blaze) — despite the recommendation of COSAC and the State Bar, and despite the ABA’s adoption of a screening rule about six weeks before the New York Rules of Professional Conduct took effect on April 1st, New York Rule 1.10 does not contain a screening provision. It still provides as follows:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein.

This is identical to DR 5-105(D) in the old Code, except that the references are to provisions in the new Rules instead of the Code. And like DR 5-105(D), Rule 1.10 does not permit screening to overcome a former client’s objection to a representation materially adverse to the former client in the same or a substantially related matter.

Nevertheless, there are some noteworthy differences between DR 5-105(D) and Rule 1.10, which I will briefly examine paragraph by paragraph.

Rule 1.10(c): Imputing a Lateral’s Conflicts

Rule 1.10(c) provides as follows:

(c) When a lawyer becomes associated with a firm, the firm may not knowingly represent a client in a matter that is the same as or substantially related to a matter in which the newly associated lawyer, or a firm with which that lawyer was associated, formerly represented a client whose interests are materially adverse to the prospective or current client unless the newly associated lawyer did not acquire any information protected by Rule 1.6 or Rule 1.9(c) that is material to the current matter.

Strictly speaking, Rule 1.10(c) is not necessary, because Rule 1.10(a) imputes conflicts created by Rule 1.9. But COSAC thought it wise to add this provision to Rule 1.10 to make the imputation rules as clear as possible. The effect of Rule 1.10(c) is to impute to an entire law firm the conflicts brought to a firm by a lateral, whether the lateral personally represented a former client or one of the lateral’s prior firms did so.

Rule 1.10(d): Waiving Imputed Conflicts

Rule 1.10(d) is another clarification provision. It provides:

(d) A disqualification prescribed by this Rule may be waived by the affected client or former client under the conditions stated in Rule 1.7.

Rule 1.10(d) does not change the law, but it does fill a technical gap in the rules. The basic imputation provision, Rule 1.10(a), provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein. The phrase “except as otherwise provided therein” refers to waiver provisions within these rules, as well as to screening provisions in Rule 1.11. Thus, if Joyce has a conflict under Rule 1.9 that prevents her from opposing Proust in a lawsuit (because she personally formerly represented Proust in a substantially related matter), then no lawyer in her firm may oppose Proust in a lawsuit unless Proust waives the conflict as provided in Rule 1.9 (i.e., gives informed consent, confirmed in writing). That’s all fine.

But suppose, instead, that Proust says, “I will not consent to being opposed by Joyce, but I will consent to being opposed by some other lawyer in your firm.” That situation is not strictly covered by Rule 1.9, which governs waivers of a personally disqualified lawyer’s own conflicts, but does not cover waivers of imputed conflicts. Rule 1.9 says nothing about waiving imputed conflicts. Yet if a client can consent to allowing her own former lawyer to oppose her in a substantially related matter, then a fortiori she should have power to consent to allowing a partner or associate of her former lawyer to oppose her. Right? Nobody disagrees with that proposition, but DR 5-105(D) said nothing about it. Rule 1.10(d) fills that gap by stating explicitly that a client or former client may waive imputed conflicts as well as the underlying conflicts that give rise to the imputation. Obvious, perhaps, but COSAC believed it was a good idea for rules to state the obvious as well as the subtle.

What does Rule 1.10(d) mean by permitting waivers “under the conditions stated in Rule 1.7”? The “conditions” stated in Rule 1.7(b) are:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

These sometimes fit neatly in the context of imputed conflicts, and sometimes they do not. Suppose Lawyer A represents Client A (a new client), who is planning to sue Client B (an existing client of Lawyer A’s partner). Because Lawyer A’s partner could not sue his own existing client (Client B), Rule 1.10(a) imputes the partner’s conflict to every lawyer in the firm, including Lawyer A. However, under Rule 1.10(d), Lawyer A can get a waiver of this imputed conflict if Lawyer A can satisfy the condition in Rule 1.7(b)(1) — Lawyer A must reasonably believe that he can diligently and competently represent Client A against Client B even though his partner represents Client B.

Rule 1.7(b)(3), though, is not an easy fit. Rule 1.7(b)(3) prohibits a lawyer from handling both sides of the same litigation. Even if Client X and Client Y want Lawyer Z to represent both of them in a lawsuit, the conflict is per se nonconsentable under Rule 1.7(b)(3). And because Lawyer Z practicing alone could not represent both sides in the same suit, Rule 1.10(a) provides that no lawyer associated with Lawyer Z may do so — the conflict is imputed to every lawyer in Lawyer Z’s firm. May that imputed conflict be waived? That is, may Client X and Client Y give their informed consent for Lawyer Z to represent Client X and Lawyer Z’s partner to represent Client Y? Not clear. I would think not. I would think that the same law firm cannot handle both sides of the same litigation. But Rule 1.10(d) implies that the conflict is only an imputed one and therefore can be waived under the conditions stated in Rule 1.7(b). Can it? Can Lawyer Z ever reasonably believe that she can competently and diligently represent a client in litigation if the opposing lawyer is her own partner? Some would say no, but others would say yes, especially if the opposing partner is in a distant office of a large firm and rarely speaks with Lawyer Z and is screened off from any contact with Lawyer Z regarding the litigation.

But even if the opposing lawyers could satisfy Rule 1.7(b) (1), does the per se quality of Rule 1.7(b)(3) carry over to Rule 1.10(d)? Is this nonconsentable even under Rule 1.10(d)? Some would argue that it is waivable. After all, the drafters could have said that a conflict was consentable only if “the representation does not involve the assertion of a claim by one client against another client represented by the lawyer or another lawyer associated with the lawyer’s firm in the same litigation,” but the drafters did not say that. The courts, therefore, will eventually have to resolve the question whether the same law firm can handle opposite sides of the same litigation.

Rule 1.10(e)–(g): Checking for Conflicts

Rules 1.10(e)–(g) are equivalent to the conflict checking requirements formerly located in DR 5-105(E), with some modifications. Rules 1.10(e)–(g) provide:

(e) A law firm shall make a written record of its engagements, at or near the time of each new engagement, and shall implement and maintain a system by which proposed engagements are checked against current and previous engagements when:

(1) the firm agrees to represent a new client;

(2) the firm agrees to represent an existing client in anew matter;

(3) the firm hires or associates with another lawyer; or

(4) an additional party is named or appears in a pending matter.

(f) Substantial failure to keep records or to implement or maintain a conflict-checking system that complies with paragraph (e) shall be a violation thereof regardless of whether there is another violation of these Rules.

(g) Where a violation of paragraph (e) by a law firm is a substantial factor in causing a violation of paragraph (a) by a lawyer, the law firm, as well as the individual lawyer, shall be responsible for the violation of paragraph (a).

The enumerated subparagraphs of Rule 1.10(e) — the main new feature of the Rule —were added by COSAC to give more guidance to lawyers by highlighting four situations in which law firms ought to check for conflicts. However, COSAC made a mistake here. Subparagraphs (1) and (2) entail new engagements, either by a new client or by an existing client, but subparagraph (3) may not involve new engagements, and subparagraph (4) definitely does not. To elaborate, hiring a new lawyer entails new engagements only if the clients follow the lawyer to the new firm. If the new lawyer does not bring any clients, then no new engagements are created. The mere act of hiring a lateral lawyer may well cause conflicts with clients of the new lawyer or the new lawyer’s former firm, but hiring a lateral is not an occasion on which the firm must check proposed engagements against previous engagements. Likewise, regarding subparagraph (4), no new engagements arise when a law firm names a new party defendant or a new party otherwise appears in litigation. As Chief Reporter for COSAC, I take responsibility for this mistake, which I should have seen long ago.

What should law firms do about the misfit provisions in subparagraphs (3) and (4), and how should disciplinary authorities react to them? I think law firms should do their best to check conflicts not only when they enter into new engagements but also when they hire a new lawyer or a new party enters litigation. This is prudent because — quite apart from the rules mandating conflicts checks — it would nevertheless violate the rules to continue existing representations after a conflict arose due to a new hire or a new party. Disciplinary authorities, however, should not discipline lawyers or law firms if their conflict checking systems do not cover new hires or new parties, because those situations do not track the fundamental instruction of the rule to check “each new engagement” for conflicts.

Rules 1.10(f) and (g) are substantively equivalent to the last two sentences of old DR 5-105(E), but COSAC has broken out those final two sentences as separate paragraphs of the conflict-checking rule and has simplified their language.

Rule 1.11(a): Former Public Servants

Most of Rule 1.11 is in many ways equivalent to old DR 9-101, but the new rule adds some important features, reorganizes the material, and is far more specific than the Code version. Rule 1.11(a) provides:

(a) Except as law may otherwise expressly provide, a lawyer who has formerly served as a public officer or employee of the government:

(1) shall comply with Rule 1.9(c); and

(2) shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. This provision shall not apply to matters governed by Rule 1.12(a).

Thus, Rule 1.11(a)(1) — unlike DR 9-101 — expressly requires a former public servant to comply with Rule 1.9(c), which protects a former client’s confidential information. This gives former government clients the same protection as former private clients with respect to “confidential information.” We may have assumed this all along, but it is helpful to see it in black and white.

Rule 1.11(a)(2) is something new. The key prohibition — a lawyer “shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee” — is identical to the prohibition in DR 9-101(B)(1). But Rule 1.11(a)(1) allows a lawyer to overcome this conflict if “the appropriate government agency gives its informed consent, confirmed in writing,” whereas DR 9-101(B) did not allow conflicts to be cured by consent. Thus, lawyers who formerly served the public appear to be more valuable to private firms than they were under the Code (and should consequently command higher compensation) because they can work on more matters or so it seems. I will withhold judgment on that question until I have discussed Rule 1.11(c).

The exclusion of “matters governed by Rule 1.12(a)” means that former judges who participated personally and substantially in a matter while on the bench cannot cure their conflicts through consent. In short, judges are different. (I’ll say more about this when I discuss Rule 1.12.)

Rule 1.11(b): Screening to Overcome Conflicts

I noted above that New York Rule 1.10 (unlike ABA Rule 1.10, as amended earlier this year) does not permit private firms to cure conflicts of interest by setting up screens around a personally disqualified lawyer. Former government lawyers are different. Even if the appropriate government agency refuses to give its informed consent to a former government lawyer’s Rule 1.11(a)(2) conflict — or even if a law firm does not want to seek the government’s consent to that conflict — the rest of the lawyers in the firm may work on the matter in question if the firm sets up a timely and effective screen. Rule 1.11(b) provides:

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the firm acts promptly and reasonably to:

(i) notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;

(ii) implement effective screening procedures to prevent the flow of information about the matter between the personally disqualified lawyer and the others in the firm;

(iii) ensure that the disqualified lawyer is apportioned no part of the fee therefrom; and

(iv) give written notice to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule; and

(2) there are no other circumstances in the particular representation that create an appearance of impropriety.

All of this basically echoes old DR 9-101(B)(1)(i), which also permitted screening, but Rule 1.11(b)(1) adds helpful details by describing both the timing (“promptly”) and some specific steps necessary to set up an adequate screen. The requirement in Rule 1.11(b)(1)(iii) to “ensure that the disqualified lawyer is apportioned no part of the fee” is straight out of the DR 9-101(B) playbook, and the mandate to “implement effective screening procedures to prevent the flow of information about the matter between the personally disqualified lawyer and the others in the firm” merely paraphrases the definition of a “screen” in Rule 1.0(t), which provides as follows:

(t) “Screened” or “screening” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer or the firm is obligated to protect under these Rules or other law.

However, the notification requirements in Rules 1.11(b)(1) (i) (“within the firm”) and (iv) (“the appropriate government agency”) were not in the Code. Subparagraph (i) does not require a firm to notify every lawyer in the firm (much less every nonlawyer). COSAC was concerned that such a requirement would generate too many screening notices, most of them of no practical relevance (e.g., a notice to a lawyer doing real estate deals in Hong Kong not to talk about a case he has never heard of to a partner he has never heard of in the litigation department in Los Angeles) and that lawyers would consequently begin to ignore the notices. Therefore, COSAC took the phrase “as appropriate” from the supervisory rule (old DR 1-104, new Rules 5.1 and 5.3), giving law firms wide leeway to decide whom to notify within the firm that a screen has been set up. Obviously the notice should be sent to the personally disqualified lawyer and the lawyers and nonlawyers who are already working on the matter from which the disqualified lawyer is being screened. It should also routinely go to the management committee (which is presumably charged with monitoring and enforcing the terms of the screen) and to the person who maintains the files on the matter (to ensure that the files are not accessible to the disqualified lawyer).

Beyond that, the firm can decide who is likely to come into contact with the disqualified lawyer and therefore needs to know about the screen. If the disqualified lawyer works in a small firm, or in a small office of a large firm, then the notice probably should go to everyone who works in the office, lawyers and nonlawyers alike. But in a large office, perhaps the notice will be sent only to lawyers in the same department, or those whose offices are on the same floor, or to some other group that might otherwise engage in forbidden discussion about the matter. If the matter is a high profile matter (e.g., the defense of Karl Rove, or a case about a plane crash) that is likely to be the subject of conversation around the office, then it might be “appropriate” to notify everyone in the office about the screen. In short, many factors will inform the decision about which lawyers and nonlawyers to notify about the screen.

Rule 1.11(c): Confidential Government Information

Rule 1.11(c) governs a special category of information called “confidential government information.” It provides as follows:

(c) Except as law may otherwise expressly provide, a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and that, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely and effectively screened from any participation in the matter in accordance with the provisions of paragraph (b).

The provision is virtually identical to old DR 9-101(B)(2) but adds one helpful new feature: Rule 1.11(c) defines “confidential government information,” which the Code did not do. Keeping in mind that the information must be “about a person” (not about a fighter jet, an agency policy, or some other inanimate or intangible thing), the definition requires three elements:

• When the government acquired it, the information about the person was “obtained under governmental authority,” and

• At the time the lawyer applies Rule 1.11 to the information, it is “not otherwise available to the public,” and

• Either (a) the government is prohibited by law from disclosing the information to the public, or (b) the government has a legal privilege not to disclose the information.

The first two elements should not present much difficulty. The third element — the government’s obligation or privilege to withhold the information — will often be more difficult to apply because privilege questions can be tricky.

There is considerable overlap between Rule 1.11(a) and Rule 1.11(c). Any lawyer who “participated personally and substantially” in a matter will also be likely to possess “confidential government information” about any person who was involved in the matter (such as an investigative target, a witness, or a confidential informant). In both instances the remaining lawyers in the firm may work on the matter as long as the former government lawyer is properly screened, but under Rule 1.11(a) the former government lawyer may personally work on the matter with consent from the appropriate government agency, whereas under Rule 1.11(c) consent cannot cure the problem. This is why the overlap is crucial. If a lawyer participated personally and substantially in a matter and consequently obtained “confidential government information” about a person, and if that information “could be used to the material disadvantage of that person,” then the government is powerless to grant consent for the former government lawyer to work on the matter personally.

Rule 1.11(e): Adjusting the Definition of ‘Matter’

Rule 1.11(e) adjusts the definition of the key term “matter” to fit Rule 1.11. For all other rules, the term “matter” is defined in Rule 1.0(l) (which is in the Terminology section) as follows:

(l) “Matter” includes any litigation, judicial or administrative proceeding, case, claim, application, request for a ruling or other determination, contract, controversy, investigation, charge, accusation, arrest, negotiation, arbitration, mediation or any other representation involving a specific party or parties.

Rule 1.11(e) varies that definition for purposes of Rule 1.11 as follows:

(e) As used in this Rule, the term “matter” as defined in Rule 1.0(l) does not include or apply to agency rulemaking functions.

This adjustment to the definition was the brainchild of the Courts, not COSAC. It would probably be unnecessary in most jurisdictions because an agency’s rulemaking functions generally do not involve “a specific party or parties.” But the tweak is helpful in New York because N.Y. City Op. 889 (1976) opined that the term “matter” included rulemaking. Rule 1.11(e) rejects that view.

Unfortunately, the courts also deleted a COSAC proposal —based directly on ABA Model Rule 1.11(e)(2) — to include in the definition of matter “any other matter covered by the conflict of interest rules of the appropriate government agency.” Perhaps the courts assumed that applying Rule 1.11 to matters already covered by an agency’s conflict of interest rules would be redundant and unnecessary. But some lawyers may not think to look at an agency’s own conflict rules, and others may assume that if New York did not adopt ABA Model Rule 1.11(e)(2) then matters covered by an agency’s own conflict of interest rules fall outside the definition of “matter” for purposes of New York Rule 1.11. The Courts should have followed COSAC and the ABA on this one — it’s hard to see what harm would have come from including a heads-up to look at government agency regulations when interpreting and applying Rule 1.11.

Rule 1.12(b): Former Arbitrators, Mediators, and Law Clerks

Rule 1.12(a), which is identical to old DR 9-101(A), provides that a lawyer “shall not accept private employment in a matter upon the merits of which the lawyer has acted in a judicial capacity.” There is no provision for consent. A former judge who is disqualified by Rule 1.12(a) cannot accept the representation at issue even with the consent of the opposing party. But what about former arbitrators, mediators, and law clerks? In the old Code, EC 5-20 covered some of this ground by providing: “A lawyer who has undertaken to act as an impartial arbitrator or mediator should not thereafter represent in the dispute any of the parties involved.” However, EC 5-20 did not say whether consent could overcome the prohibition, and it did not mention former law clerks. Rule 1.12(b) fills in these gaps. It provides as follows:

(b) Except as stated in paragraph (e), and unless all parties to the proceeding give informed consent, confirmed in writing, a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as:

(1) an arbitrator, mediator or other third-party neutral; or

(2) a law clerk to a judge or other adjudicative officer or an arbitrator, mediator or other third-party neutral.

(The cross-referenced provision, Rule 1.12(e), provides as follows: “An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.”)

Thus, for mediators and arbitrators, Rule 1.12(b)(1) relaxes the stringent prohibition of Rule 1.12(a) that applies to former judges. Specifically, Rule 1.12(b)(1) allows a former “arbitrator, mediator or other third-party neutral” to represent someone who was a party or witness or otherwise connected with a matter as long as “all parties to the proceeding give informed consent, confirmed in writing.” In other words, any party to an arbitration or mediation proceeding has the power to prevent the neutral from later representing anyone involved in the matter.

Rule 1.12(b)(2) extends the same prohibition — with the same consent exception — to former law clerks, not only those who clerked for judges but also those who clerked for “any other adjudicative officer” or to “an arbitrator, mediator or other third-party neutral.” However, if the former law clerk never “participated personally and substantially” in a given matter (e.g., if a co-clerk worked on that matter, or if the clerk merely proofread an opinion drafted by the judge), then the former clerk may represent anyone connected with the matter without obtaining consent from anyone (unless some other rule, such as Rule 1.7, would require consent).

Rule 1.12(c): Negotiating for Employment

Rule 1.12(c) is a simple rule that provides as follows:

(c) 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.

This is similar to old DR 9-101(B)(3)(ii) and new Rule 1.11(d) (2), which provides that (unless the law expressly says otherwise) a lawyer who is a public officer or employee “shall not negotiate for private 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.” But Rule 1.12(c) is both broader and narrower than Rule 1.11(d) (2). It is broader because (1) it applies not only to public officers or employees but also to any lawyer in private practice who is serving as “an arbitrator, mediator or other third party neutral,” and (2) it prohibits negotiation not only for “private” employment but also for government employment. It is narrower than Rule 1.11(d)(2) because it does not apply to every lawyer who is serving as a “public officer or official” of any kind, but only to those lawyers who are serving as “a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral.”

Rule 1.12 is the last of the conflict of interest provisions in the new New York Rules of Professional Conduct. Next month I will continue my analysis of the new rules.

Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition analyzes more than 100 new cases, ethics opinions, and other developments critical to New York practice. It’s the legal ethics bible for all New York-area lawyers. To purchase, click here.

In addition, Professor Simon advises lawyers and law firms on questions of professional conduct and serves as an expert witness in cases raising issues of lawyer conduct. You may reach Professor Simon at 516-463-5289 or Roy.Simon@hofstra.edu.

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