It is best not to represent a plaintiff after serving on an arbitration panel.
I have served on the arbitration panel as the plaintiff's arbitrator. This was a three-member panel and one member was the neutral. Subsequently, the plaintiff has come to me to represent them on issues involving this matter. Can I do so?
The normal answer for most arbitrators or mediators would be no. But there is an exception under Rule of Professional Conduct 1.12 involving a partisan arbitrator. Under Rule 1.12(d), a partisan arbitrator can subsequently represent the party:
"An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party."
Some commentators have been concerned about this because of the appearance of impropriety, but the appearance of impropriety was long ago written out of the Rules of Professional Conduct. The Code of Judicial Conduct has to have that concept for obvious reasons, but lawyers do not. One of the reasons was that many judges used the appearance of impropriety as an excuse to disqualify an attorney without doing the heavy lifting. Often, the appearance of impropriety doesn't mean there is anything wrong, nor does it mean there is a basis for a disqualification.
Despite Rule 1.12, every lawyer who has acted as a partisan arbitrator should be careful about taking on a party's representation. This is particularly so if somehow there was confidential information given to the panel.
The Model Rules of Professional Conduct of the American Bar Association have the same provision as Rule 1.12, allowing a partisan arbitrator to represent that party in the future.
It would seem, despite the allowance, the better practice might be not to do such a thing. The concept of a partisan arbitrator is well understood and serves a useful purpose in resolving arbitrations. But to end up representing the party that had the arbitration before the three-member panel might raise some issues down the line. The client may be coming to the arbitrator thinking there is some perceived advantage. In any event, there is no prohibition, but every lawyer should carefully weigh whether it is a wise thing to do.
Lawyers must always clarify their roles and
I am representing a corporation. This corporation is a rather small organization and at times I have represented employees at the request of the corporate president. He allows me to do that as a favor to the employees if there are domestic issues or family matters. Is there any problem with doing that?
There is certainly no problem with a lawyer representing clients, as long as there is no conflict of interest. If a corporation or organization allows a lawyer to act as a personal lawyer for employees, there is nothing necessarily wrong with that. Of course, the lawyer must establish who is paying the fee or make sure the employee understands he or she has to pay the lawyer or that the corporation is paying.
But the bigger issue is that there are times when constituents or employees of a corporation have to understand what the role of the corporate lawyer or in-house lawyer or even retained outside lawyer is. Clearly, the lawyer has to clarify the role. The constituents or employees must know when the lawyer is not representing them.
One of the problems with a corporate lawyer who is also representing the employees individually is that at times there could be a conflict. If the corporate lawyer is playing the corporate lawyer role and interviewing employees, some of whom he or she represented, the lawyer may not be able to do that because the lawyer may have a direct conflict or have personal information from the employee representation that the lawyer cannot use.
Generally, Comment 7 to Rule 1.13 discusses the situation:
"There are times when the organization's interests may be or become adverse to those of one or more of the constituents. In such circumstances, the lawyer should advise any constituent whose interest the lawyer finds adverse to that of the organization, of the conflict or potential of conflict, that the lawyer cannot represent such constituent and that such person may wish to obtain independent representation. Care must be taken to ensure the individual understands that where there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged."
Comment 8 to Rule 1.13 also notes that a lawyer may have to give a warning to the constituents, but that "turns on the facts of each case." Rule 1.13 is a good rule because it describes in some detail the ethical obligations of a lawyer to an organization if the lawyer represents the organization.
Therefore, understanding the potential for conflict, an inside lawyer or an outside lawyer can represent constituents, but everyone must be aware there could be a time when that dual representation of constituents on personal matters can conflict the lawyer out if there are serious corporate matters where the lawyer has to interview constituents or perhaps take adverse actions against constituents.
A lawyer always has to clarify his or her role and whom he or she represents. Corporate lawyers who have represented constituents or officers or other people in the organization on personal matters have to be very, very careful, because it may end up they can represent no one, particularly in a time of need.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.