A Model Rule for Lawyers as Third-Party Neutrals Chapter 37
The Commission on Ethics and Standards in ADR (sponsored by Georgetown University Law Center and CPR Institute for Dispute Resolution) has drafted this Model Rule for adoption into the Model Rules of Professional Conduct. We offer here a framework or architecture for consideration by the appropriate bodies of the American Bar Association and any state agency or legislature charged with drafting lawyer ethics rules.
The Model Rule addresses the ethical responsibilities of lawyers serving as third-party neutrals, in a variety of alternative dispute resolution (ADR) fora (e.g., arbitration, mediation, early neutral evaluation). As an initial jurisdictional matter, the Model Rule does not address the ethical requirements of nonlawyers performing these duties, or the ethical duties of lawyers acting in ADR proceedings as representatives or advocates.
Proposed New Model Rule of Professional Conduct
Rule 4.5: The Lawyer as Third-Party Neutral
As client representatives, public citizens and professionals committed to justice and fair and efficient legal processes, lawyers should help clients and others with legal matters pursue the most effective resolution of legal problems. This obligation should include pursuing methods and outcomes that cause the least harm to all parties, that resolve matters amicably where possible, and that promote harmonious relations. Modern lawyers serve these values of justice, fairness, efficiency and harmony as partisan representatives and as third-party neutrals.
This Model Rule applies to the lawyer who acts as a third-party neutral to help represented or unrepresented parties resolve disputes or arrange transactions among each other. When lawyers act in neutral, non-representative capacities, they have different duties and obligations in the areas addressed by this Rule than lawyers acting in a representative capacity.
 There have been several earlier efforts and suggestions for rules in the ADR area to be added to the Model Rules, see, e.g., Judith Maute, “Public Values and Private Justice: A Case For Mediator Accountability,” 4 GEO. J. LEGAL ETHICS 503 (1991). For a review of ethical issues facing mediators, see Robert A. Baruch-Bush, “The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications,” 1 J. DISP. RESOL. 1, 3 (1994), reprinted in Dwight Golann, “Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators,” ch. 14, ETHICAL DILEMMAS (Little Brown & Co. 1996).
The CPR-Georgetown effort attempts to remedy some of the inadequacies of transdisciplinary ethical code drafting, see, e.g., the American Arbitration Association (AAA), the American Bar Association (ABA) and the Society of Professionals in Dispute Resolution (SPIDR), “Model Standards of Conduct for Mediators” (adopted in 1994 by the AAA, SPIDR, and the ABA Section of Dispute Resolution, but not ratified to date by the ABA Board of Governors), as well as the silences of current legal ethics formulations. For a discussion of the failure of the RESTATEMENT OF THE LAW GOVERNING LAWYERS to deal with the ethical issues raised by ADR practice, see Carrie Menkel-Meadow, “The Silences of the Restatement of the Law Governing Lawyers: Lawyering as Only Adversary Practice,” 10 GEO. J. LEGAL ETHICS 631 (Summer 1997); Geoffrey Hazard, Jr., “Non-Silences of Professor Hazard on ‘The Silences of the Restatement’: A Response to Professor Menkel-Meadow,” 10 GEO. J. LEGAL ETHICS 671 (Summer 1997); RESTATEMENT OF THE LAW GOVERNING LAWYERS (2000).
 The Model Rule is designed to be incorporated in lawyer ethics codes. The question of what other agencies may promulgate transdisciplinary rules (such as the AAA/ABA/SPIDR Model Standards of Conduct for Mediators (supra note 2), or state statutes governing all mediators, for example) is not addressed. The ABA Commission on Evaluation of the Model Rules of Professional Conduct (ABA Ethics 2000 Commission) recently reported on several proposed changes to the Model Rules of Professional Conduct affecting ADR. See Preamble, Model Rule 1.12 (Former Judge, Arbitrator or Other Third-Party Neutral) and Model Rule 2.4 (Lawyer Serving as Third-Party Neutral) (recognizing the role of the lawyer as third-party neutral, dealing with screening in law firms of mediators, arbitrators and former judges in conflicts situations involving both ADR and representational matters.) The House of Delegates of the ABA adopted in 2002 many of the proposals submitted by the ABA Ethics 2000 Commission. See www.abanet.org.
 The Model Rule attempts to regulate solely the ethical responsibilities of lawyers serving as neutrals and does not deal with other issues such as the potentially different duties of lawyers as representatives or advocates within ADR settings. For an overview of these issues, see Carrie Menkel-Meadow, “Ethics in Mediation Representation,” DISPUTE RESOLUTION MAGAZINE 3 (Winter 1997). For a summary of current efforts to address ethics issues of ADR representatives, see infra note 20.
 The Model Rule is numbered Rule 4.5 (contemplating an addition to the Model Rules section on “Transactions with Persons Other Than Clients” in simple numerical order). Ideally, the Lawyer as Third-Party Neutral would be a new Rule 4, with the other current rules simply dropping down a number. This Model Rule could be substituted for the 2002 edition of ABA Model Rule 2.4 (recognizing the lawyer as third-party neutral but not dealing specifically with many ethical issues) (www.abanet.org). Regulation of ethics issues operates at the state level and each state needs to decide whether to adopt the ABA Model Rule, the CPR-Georgetown Model Rule or another formulation. See, e.g., Tenn. Rules of Professional Conduct, Rule 2.4 (approved Sept. 17, 2002) (more detailed and extensive than ABA Ethics Commission 2000 Proposed Rule 2.4) (www.tba.org). Indeed, many states bodies charged with drafting lawyer ethics rules are currently re-evaluating the rules for their jurisdictions.
Where possible, we use language, definitions, standards and formulations consistent with the current Model Rules. We also take note, where pertinent, of (i) the work of the ABA Ethics 2000 Commission, including its proposed revisions to the Model Rules of Professional Conduct and the revisions approved by the ABA House of Delegates in February 2002, see supra note 3, and (ii) the recently completed RESTATEMENT THIRD OF THE LAW GOVERNING LAWYERS (2000).