Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › COUNSELOR › Rule 2.4 - Lawyer Serving as Third-Party Neutral

Current through Register Vol. 54, No. 28, July 13, 2024
(a)
						A lawyer serves as a third-party neutral when the lawyer assists two or more
						persons who are not clients of the lawyer to reach a resolution of a dispute or
						other matter that has arisen between them. Service as a third-party neutral may
						include service as an arbitrator, a mediator or in such other capacity as will
						enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral
						shall inform unrepresented parties that the lawyer is not representing them.
						When the lawyer knows or reasonably should know that a party does not
						understand the lawyer's role in the matter, the lawyer shall explain the
						difference between the lawyer's role as a third-party neutral and a lawyer's
						role as one who represents a client.
Comment:
(1) Alternative dispute resolution has become
						a substantial part of the civil justice system. Aside from representing clients
						in dispute-resolution processes, lawyers often serve as third-party neutrals. A
						third-party neutral is a person, such as a mediator, arbitrator, conciliator or
						evaluator, who assists the parties, represented or unrepresented, in the
						resolution of a dispute or in the arrangement of a transaction. Whether a
						third-party neutral serves primarily as a facilitator, evaluator or decision
						maker depends on the particular process that is either selected by the parties
						or mandated by a court.
(2) The
						role of a third-party neutral is not unique to lawyers, although, in some
						court-connected contexts, only lawyers are allowed to serve in this role or to
						handle certain types of cases. In performing this role, the lawyer may be
						subject to court rules or other law that apply either to third-party neutrals
						generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may
						also be subject to various codes of ethics, such as the Code of Ethics for
						Arbitration in Commercial Disputes prepared by a joint committee of the
						American Bar Association and the American Arbitration Association or the Model
						Standards of Conduct for Mediators jointly prepared by the American Bar
						Association, the American Arbitration Association and the Society of
						Professionals in Dispute Resolution.
(3) Unlike nonlawyers who serve as
						third-party neutrals, lawyers serving in this role may experience unique
						problems as a result of differences between the role of a third-party neutral
						and a lawyer's service as a client representative. The potential for confusion
						is significant when the parties are unrepresented in the process. Thus,
						paragraph (b) requires a lawyer-neutral to inform unrepresented parties that
						the lawyer is not representing them. For some parties, particularly parties who
						frequently use dispute-resolution processes, this information will be
						sufficient. For others, particularly those who are using the process for the
						first time, more information will be required. Where appropriate, the lawyer
						should inform unrepresented parties of the important differences between the
						lawyer's role as third-party neutral and a lawyer's role as a client
						representative, including the inapplicability of the attorney-client
						evidentiary privilege. The extent of disclosure required under this paragraph
						will depend on the particular parties involved and the subject matter of the
						proceeding, as well as the particular features of the dispute-resolution
						process selected.
(4) A lawyer who
						serves as a third-party neutral subsequently may be asked to serve as a lawyer
						representing a client in the same matter. The conflicts of interest that arise
						for both the individual lawyer and the lawyer's law firm are addressed in Rule
						1.12.
(5) Lawyers who represent
						clients in alternative dispute-resolution processes are governed by the Rules
						of Professional Conduct. When the dispute-resolution process takes place before
						a tribunal, as in binding arbitration (see Rule
						1.0(m)), the
						lawyer's duty of candor is governed by Rule
						3.3. Otherwise, the lawyer's duty
						of candor toward both the third-party neutral and other parties is governed by
						Rule 4.1.