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The “Two Hats” Rule for California Lawyer-Mediators

Posted on: February 27th, 2020

By: Greg Fayard

For decades now, many practicing attorneys also mediate or arbitrate cases. Gone are the days where only retired judges mediate or arbitrate. California’s Rules of Professional Conduct for lawyers recognize that some neutrals also practice law.

That is, these are lawyers who wear “two hats”—the mediator hat and the lawyer hat.

Under Rule 1.12, a neutral in a case, cannot represent a party from a past mediation or arbitration as a client in a NEW matter without the informed written consent of all the parties in the NEW matter. This means, for example, that mediators need to keep track of all the parties in their mediations and if the mediator takes on a case as a lawyer involving a former mediation party, INFORMED WRITTEN CONSENT OF ALL PARTIES IN THAT NEW MATTER IS NEEDED.

But some lawyers work with mediators/arbitrators. That situation is also addressed by Rule 1.12. Just because a mediator-lawyer handled a case for a current client in the past, should not automatically bar another lawyer in the mediator’s office from representing that client in a NEW case. Rule 1.12 permits the otherwise conflicted lawyer to take the new case so long as screening and written notice is provided.

Here’s the bottom line: Per Rule 1.12, California lawyers who also mediate need to now have a robust conflict check system. Sometimes informed written consent for all parties in a new matter is needed. Other times, only screening and written notice (not consent) is needed.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

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