RI-235

May 12, 1995

SYLLABUS

A lawyer, who had previously been selected and acted as a partisan of a party in a multi-member special mediation panel, may not subsequently represent the partisan who selected that lawyer in subsequent litigation on the same or a substantially related matter unless all parties consent.

References: MRPC 1.11(b), 1.12(a) and (d), 8.4(c). CI-1100, CI-966, CI-171 and Op 95 are superseded.

TEXT

A lawyer who had acted as a partisan mediator in a special mediation, which mediation failed to result in a settlement, asks whether it is ethically permissible to represent the partisan party who had selected the lawyer in subsequent litigation on the same issue. The facts state that there were substantial efforts by all mediators to force a settlement and that, in so doing, information partisan arbitrators might not normally be privy to may have been exchanged.

While there is no rule exactly on point for this inquiry, MRPC 1.11(b) recognizes that a lawyer who acquires confidential information about a person while serving as a public officer or employee may not thereafter represent a private client whose interest is adverse to the person and in which the confidential information could be used to the material disadvantage of that person. Moreover, MRPC 1.12 recognizes that former judges, arbitrators and other adjudicators should not thereafter privately represent one of the parties in a matter connected to a proceeding over which they had presided. What these two rules recognize is the import of MRPC 8.4(c) which states:

"It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice."

With regard to an evaluation of these various rules of professional conduct, one thing becomes clear: that there is a distinct bias against having lawyers or others in the legal profession, who have acted in an adjudicatory capacity, subsequently representing the parties over which the lawyer or judge previously had decision-making authority in the same matter.

The only exception to this rule is that contained in MRPC 1.12(d) which specifies that "an arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party." Under the current facts, the inquirer was involved in a "special mediation" procedure rather than an arbitration. There is a significant deference between a special meditation and an arbitration. In an arbitration, a decision that is binding on the parties is usually rendered. However, mediation is generally not binding and the likelihood of a final decision less definite. The extension of MRPC 1.12(d) to cover "special meditations" would materially affect the mediation process and could very well change the focus of the mediator from that of an evaluator to that of a potential advocate. Therefore, MRPC 1.12(d) does not resolve this inquiry.

A similar situation was addressed under the former Michigan Code of Professional Responsibility in CI-1100. In concluding that a lawyer-mediator may not later represent a client in the same case in which the lawyer served as a mediator, the opinion noted that the action of a mediator is not merely mechanical, but requires the exercise of certain discretion. Thus, when a lawyer is at the same time a mediator, a conflict of interest is apt to arise between duty toward the public as a quasi-judicial official and toward some client. The opinion cited to other opinions which adopted a similar rule absolutely forbidding any subsequent representation on the same matter in which the lawyer served as judicial officer, Op 95, CI-171, CI-966.

In conclusion, a lawyer acting as a partisan mediator is constrained by the dictates of MRPC 1.12(a) "not" to represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or "other adjudicative officer, . . . unless all parties to the proceeding consent after consultation." Opinions CI-1100, CI-966, CI-171 and Op 95 are superseded, since they do not allow all parties to consent to subsequent representation.