1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
PROPOSED RULE 2.3
EVALUATION FOR USE BY THIRD PERSONS
than the client if:
aspects of the lawyer's relationship with the client; and
relating to the evaluation is otherwise protected by Rule 1.6.
[1] An evaluation may be performed at the client's direction but for the primary purpose of
establishing information for the benefit of third parties; for example, an opinion concerning the title
of property rendered at the behest of a vendor for the information of a prospective purchaser, or at
the behest of a borrower for the information of a prospective lender. In some situations, the
evaluation may be required by a government agency; for example, an opinion concerning the
legality of the securities registered for sale under the securities laws. In other instances, the
evaluation may be required by a third person, such as a purchaser of a business.
[2] Lawyers for the government may be called upon to give a formal opinion on the legality
of contemplated government agency action. In making such an evaluation, the government lawyer
acts at the behest of the government as the client but for the purpose of establishing the limits of the
agency's authorized activity. Such an opinion is to be distinguished from confidential legal advice
given agency officials. The critical question is whether the opinion is to be made public.
[3] A legal evaluation should be distinguished from an investigation of a person with whom
the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser
to analyze a vendor's title to property does not have a client-lawyer relationship with the vendor. So
also, an investigation into a person's affairs by a government lawyer, or by special counsel
employed by the government, is not an evaluation as that term is used in this Rule. The question is
whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is
retained by that person, the general rules concerning loyalty to client and preservation of
confidences apply, which is not the case if the lawyer is retained by someone else. For this reason, it
is essential to identify the person by whom the lawyer is retained. This should be made clear not
only to the person under examination, but also to others to whom the results are to be made
available.
[4] When the evaluation is intended for the information or use of a third person, a legal duty
to that person may or may not arise. That legal question is beyond the scope of these Rules.
However, since such an evaluation involves a departure from the normal client-lawyer relationship,
careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional
judgment that making the evaluation is compatible with other functions undertaken in behalf of the
fraud, it would normally be incompatible with that responsibility for the lawyer to perform an
evaluation for others concerning the same or a related transaction. Assuming no such impediment is
apparent, however, the lawyer should advise the client of the implications of the evaluation,
particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings.
[5] The quality of an evaluation depends on the freedom and extent of the investigation
upon which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems
necessary as a matter of professional judgment. Under some circumstances, however, the terms of
the evaluation may be limited. For example, certain issues or sources may be categorically excluded,
or the scope of search may be limited by time constraints or the noncooperation of persons having
relevant information. Any such limitations which are material to the evaluation should be described
in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the
terms upon which it was understood the evaluation was to have been made, the lawyer's obligations
are determined by law, having reference to the terms of the client's agreement and the surrounding
circumstances.
[6] When a question concerning the legal situation of a client arises at the instance of the
client's financial auditor and the question is referred to the lawyer, the lawyer's response may be
made in accordance with procedures recognized in the legal profession. Such a procedure is set
forth in the American Bar Association Statement of Policy Regarding Lawyers' Responses to
Auditors' Requests for Information, adopted in 1975.
See Rule 1.0(c)
“Reasonably Believes”See Rule 1.0(j)
PROPOSED RULE 2.4
LAWYER AS DISPUTE RESOLUTION NEUTRAL
persons who are not clients of the lawyer to reach a resolution of disputes that have arisen between
them. Service as a dispute resolution neutral may include service as a mediator, an arbitrator whose
decision does not bind the parties, a case evaluator, or a judge or juror in a mini-trial or summary
jury trial as described in Supreme Court Rule 31, or in such other capacity as will enable the lawyer
to impartially assist the parties resolve their dispute.
affected by the representation of clients with interests directly adverse to any of the parties
to the dispute, or by the lawyer’s responsibilities to a client or a third person, or by the
lawyer’s own interests;
lawyer’s qualifications and experience as a dispute resolution neutral, the rules and
procedures which will be followed in the proceeding, and the lawyer’s responsibilities as a
dispute resolution neutral, provided, however, that any party to the dispute who is
represented by a lawyer may waive his or her right to all or part of the consultation required
by this paragraph;
lawyer, the lawyer’s clients, the clients of other lawyers with whom the lawyer is associated
in a firm, or third persons which may materially affect the lawyer’s impartiality in the
matter;
attorneys, consents in writing to the lawyer’s service as a dispute resolution neutral in the
matter; and
accordance with the requirements of that Rule.
be followed in the proceeding and the lawyer’s responsibilities as a dispute resolution
neutral;
dispute;
dispute as if it were information protected by Rules 1.6, and 1.8 (b),
caucus with a party or a party’s lawyer as if it were information related to the representation
of a client protected by Rules 1.6, and 1.8(b);
unrepresented party does not understand how a proposed agreement might affect his or her
legal rights or obligations, the lawyer shall advise that party to seek the advice of
independent counsel;
rendered as the dispute resolution neutral, from a party, a party’s lawyer, or any other
person involved or interested in the dispute resolution process;
matter in dispute and shall not make any substantive decisions on behalf of a party; and
dispute resolution neutral as set forth in the Rule.
shall seek the court’s permission to withdraw from service as a dispute resolution neutral if:
agreement resolving the matter in dispute or that any of the parties is unwilling or unable to
cooperate with the lawyer’s dispute resolution initiatives; or
requirements of Rules 1.2(c) and 2.2, draft a settlement agreement that results from the
dispute resolution process, but shall not otherwise represent any or all of parties in
connection with the matter, and
1.8(b), and 1.9.
[1] Mediation, arbitration, and other forms of alternative dispute resolution have been in use
for many years, but increasing demands in recent years for more prompt and efficient means of
resolving disputes of all kinds have led to an increase in the demand for the services of dispute
resolution neutrals skilled in the analysis of disputes and in conflict resolution. Lawyers are often
particularly well-suited to perform this role and should be encouraged to do so.
[2] Although service as a dispute resolution neutral is considered a law-related service
governed generally by these Rules (see Rule 5.7), the unique nature of a lawyer’s role when serving
as a dispute resolution neutral demands separate, more specific, treatment in this Rule for the
guidance of the profession and the public.
[3] This Rule provides that a lawyer may serve as a dispute resolution neutral, whether as a
mediator, non-binding arbitrator, a case evaluator, or judge or juror in a mini-trial or summary jury
trial. The scope of a lawyer’s possible service as a neutral is intended to be generally the same as
that adopted in Tennessee Supreme Court Rule 31 governing court-annexed alternative dispute
resolution. While Rule 31 covers only court-annexed alternative dispute resolution, however, this
Rule covers services as a dispute resolution neutral whether rendered in connection with court-
annexed dispute resolution proceedings or in another, perhaps wholly private context not covered
by Rule 31.
[4] This Rule does not cover the rendering by a lawyer of services related to alternative
dispute resolution that are not neutral in nature, but are more judicial in nature, such as service as an
arbitrator in a binding arbitration. Although Rule 5.7 may address a lawyer’s obligations in such a
context, this Rule does not purport to address them.
[5] Although a lawyer who serves as a dispute resolution neutral is subject to the Rules of
Professional Conduct (see Rule 5.7), many of the Rules do not directly apply to such service
because the participants in a dispute resolution proceeding are not the lawyer’s clients. Other Rules
do apply, however, and this Rule further provides specific applications of certain rules that must
apply differently in this context (including, for example, the application of rules governing conflicts
of interest).
[6] Although the requirements of this Rule are generally intended to be consistent with
those imposed on dispute resolution neutrals under Rule 31, there are duties additional to those set
out in Rule 31 that are imposed on lawyers who serve in this role. See also Standards of
Professional Conduct for Rule 31 Mediators. Even though nonlawyers certified by the Supreme
Court under Rule 31 as dispute resolution neutrals may not be subject to these Rules and the parties
to the dispute are not deemed to be the clients of the lawyer serving as their dispute resolution
neutral, the parties are properly entitled to assume that lawyers serving in this capacity are largely
subject to the same broad standards of conduct as are applicable to lawyers when they are providing
legal services to clients.
[7] The Court has set forth in Rule 31 rules and standards of professional conduct
applicable to all Rule 31 neutrals, including both lawyers and nonlawyers. Thus, paragraph (b)
contemplates that a lawyer may serve as a Rule 31 neutral if the lawyer complies with these
requirements. Paragraph (b)(9) requires that a lawyer serving as a dispute resolution neutral
pursuant to Supreme Court Rule 31 must comply fully with the requirements of that Rule.
[8] Paragraph (b) specifies the circumstances in which a lawyer may serve parties to a
dispute as a dispute resolution neutral. With respect to the parties to the dispute, Rule 1.7 is
inapplicable because there is no attorney-client relationship between the neutral and the parties to
lawyer is serving as a neutral, if the lawyer’s service as a neutral will materially limit the lawyer’s
representation of the client. Similarly, if the lawyer’s service as a neutral would be materially
adverse to one of the lawyer’s former clients, and the matters are substantially related, the lawyer
must afford the former client the protection of Rule 1.9.
[9] Conflicts of interest for lawyers serving as dispute resolution neutrals are specifically
addressed, given the fact that, although parties to a dispute resolution proceeding are not the clients
of the dispute resolution neutral, the lawyer serving as neutral must be impartial, must fully disclose
any pertinent relationships to the parties to the proceeding, and must obtain their consent to the
lawyer’s service based on these disclosures. Note that, although paragraph (b)(4) does not provide
for mandatory vicarious disqualification based on a lawyer’s current or prospective service as a
dispute resolution neutral, the fact that, for example, a lawyer asked to serve as a neutral has a
partner who currently represents one of the parties to the dispute in other matters would obviously
have to disclose this fact to the parties under (b)(7) and obtain consent to service as a neutral. Of
course, this lawyer would also have to have a reasonable belief that impartiality was possible despite
this and other such pertinent relationships. If a lawyer may not make the disclosures required by
paragraph (b)(7) because of his confidentiality obligations to a client, then the lawyer may not serve
as a dispute neutral.
[10] Paragraph (c) further provides various standards of conduct particular to service by a
lawyer as a dispute resolution neutral. Again, these rules of conduct are intended to be consistent
with Rule 31 and to address the particular situation of a neutral, who occupies a significantly
different relationship to participants in a dispute resolution proceeding than a lawyer does with
clients. Paragraphs (c)(4) and (c)(5) treat the confidentiality of all information related to the dispute
(including that obtained in individual caucuses with the parties) by analogy to the Rules concerning
the confidentiality of client information. Thus, for example, any question concerning the potential
disclosure of fraud by a participant in a dispute resolution proceeding would be addressed under
Rules 1.6, 3.3 or 4.1 as though the participant were, in fact, a client of the lawyer. Other portions of
paragraph (c), such as the ban on undisclosed compensation by one of the participants in paragraph
(c)(7), the prohibition on coercion or decision making on behalf of parties in paragraph (c)(8), and
the ban on giving legal advice to the participants in paragraph (c)(6), impose restrictions needed to
insure and reinforce the necessary impartiality of the lawyer serving as a dispute resolution neutral.
[11] Paragraph (d) requires that a lawyer serving as a dispute resolution neutral withdraw or
seek an appointing court’s permission to withdraw in certain specified circumstances, such as a
request by a party to do so or the lawyer’s reasonable belief that the lawyer’s service will not be
fruitful.
[12] Paragraph (e) establishes a lawyer’s duties toward participants in a dispute resolution
proceeding upon the termination of the lawyer’s service as a neutral for any reason, whether
because a settlement is achieved or because a party requests the lawyer’s withdrawal. Given the
impartial role of a dispute resolution neutral, it is inappropriate for a lawyer who had served as a
dispute resolution neutral to later represent any of the parties to the dispute in connection with the
subject matter of that dispute resolution proceeding. This disqualification, however, does not extend
to other lawyers associated in a law firm with the dispute resolution neutral. If, however, the parties
have successfully resolved their dispute, paragraph (e)(1) permits the lawyer-neutral to draft the
agreement settling their dispute, but this must be done in conformity with Rules 1.2(c) and 2.2.
[13]Further, paragraph (e)(2) provides that, even though the participants to a concluded
dispute resolution proceeding were not the clients of the lawyer who served as a dispute resolution