After serving as a party's partisan member of a mediation panel, can the lawyer represent that party in later litigation on the same matter?

Plain-English summary

A lawyer who had acted as a partisan mediator in a special mediation that failed to settle asked whether the lawyer could represent the partisan party who had selected the lawyer in subsequent litigation on the same issue. The facts noted that all the mediators made substantial efforts to force a settlement, during which information a partisan arbitrator might not normally see may have been exchanged.

The opinion found no rule exactly on point but drew on MRPC 1.11(b) (a lawyer who acquired confidential information as a public officer may not later represent a private client adversely where that information could be used against the person) and MRPC 1.12 (former judges, arbitrators, and other adjudicators should not later privately represent a party in a matter connected to a proceeding over which they presided), both reflecting MRPC 8.4(c). The opinion concluded these rules show a distinct bias against a lawyer who has acted in an adjudicatory capacity later representing parties over whom the lawyer had decision-making authority in the same matter.

The opinion considered the MRPC 1.12(d) exception, which allows an arbitrator selected as a partisan of a party in a multi-member arbitration panel to later represent that party. It concluded the exception does not apply here, because this was a "special mediation," not an arbitration: arbitration usually produces a binding decision, while mediation is generally non-binding, and extending the exception to special mediation could turn the mediator from an evaluator into a potential advocate. Drawing on CI-1100 (a lawyer-mediator may not later represent a client in the same case, because mediation requires discretion and risks a conflict between the quasi-judicial duty to the public and duty to a client) and related opinions, the opinion concluded that under MRPC 1.12(a) the partisan mediator may not represent anyone in a matter in which the lawyer participated personally and substantially as an adjudicative officer unless all parties consent after consultation. It superseded CI-1100, CI-966, CI-171, and Op 95 because those opinions did not allow all parties to consent.

Currency note

This opinion was issued in 1995, before later amendments to the Michigan Rules of Professional Conduct. MRPC 1.12 and the related rules have since been amended (and Michigan's "mediation" terminology later changed to "case evaluation"), and subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a partisan mediator later represent the party who selected them?

A: Only with consent. The opinion concluded the lawyer may not represent that party in subsequent litigation on the same or a substantially related matter unless all parties consent after consultation.

Q: Doesn't the arbitration-partisan exception in MRPC 1.12(d) allow this?

A: No. The opinion concluded the exception applies to arbitration, not special mediation, because mediation is generally non-binding and extending the exception could turn the mediator into a potential advocate.

Q: What rule ultimately governs the disqualification?

A: The opinion concluded MRPC 1.12(a) governs: a lawyer who participated personally and substantially as an adjudicative officer may not later represent anyone in the matter unless all parties consent.

Q: Did this opinion change prior Michigan guidance?

A: Yes. The opinion superseded CI-1100, CI-966, CI-171, and Op 95 because those opinions barred subsequent representation absolutely, without allowing all-party consent.

Background and rules framework

The opinion applied Michigan's former-adjudicator and government-officer rules. MRPC 1.12(a) and (d) (Model Rule 1.12) bar a former judge, arbitrator, mediator, or other third-party neutral from later representing a party in the matter absent all-party consent, with a narrow exception for a partisan arbitrator on a multi-member panel. MRPC 1.11(b) (Model Rule 1.11) bars misuse of confidential government information. MRPC 8.4(c) (Model Rule 8.4) addresses conduct prejudicial to the administration of justice. The opinion relied on CI-1100, CI-966, CI-171, and Op 95, all of which it superseded.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / MRPC 1.11(b) (confidential government information)
• MR 1.12 / MRPC 1.12(a), (d) (former judge, arbitrator, mediator; partisan-arbitrator exception)
• MR 8.4 / MRPC 8.4(c) (conduct prejudicial to the administration of justice)

Other opinions cited:

• Michigan CI-1100, CI-966, CI-171, Op 95: subsequent representation after serving as a neutral (superseded by this opinion)

See also

• Mich Ethics Op. RI-188: file retention for a neutral arbitrator or mediator
• Mich Ethics Op. RI-227: former guardian ad litem representing a relative to adopt the ward
• Mich Ethics Op. RI-213: guardian/conservator may not also be the ward's counsel

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1105&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.