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Rule 4-2.4 Lawyer Serving as Third-Party Neutral
(a) A lawyer serves as a third-party neutral when the lawyer assists 2
or more persons who are not clients of the lawyer to reach a resolution of a
dispute or other matter that has arisen between them. Service as a third-party
neutral may include service as an arbitrator, a mediator, or in such other
capacity as will enable the lawyer to assist the parties to resolve the matter.
(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
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
decisionmaker depends on the particular process that is either selected by the
parties or mandated by a court.
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 apply 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. A Florida Bar member who is a certified
mediator is governed by the applicable law and rules relating to certified
mediators.
Unlike nonlawyers 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, subdivision (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 subdivision
will depend on the particular parties involved and the subject matter of the
proceeding, as well as the particular features of the dispute-resolution process
selected.
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 4-1.12.
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 terminology), the lawyer's duty of candor is governed by rule
4-3.3. Otherwise, the lawyer's duty of candor toward both the third-party
neutral and other parties is governed by rule 4-4.1.
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