Rule 1.12—Former Judge, Neutral, or Law Clerk
I. INTRODUCTION
A. Primary Coverage
Rule 1.12 primarily covers conflicts arising when a lawyer, having served as adjudicator (or law clerk to an adjudicator) or neutral, provides services to clients. Because law clerks are the most mobile of these groups, in the job market, Rule 1.12 most frequently applies, through paragraphs (a), (b), and (c), when a former law clerk finds new employment, usually with a law firm.
B. Rules 1.11/1.12
Rule 1.12 is first cousin to Rule 1.11. "This rule generally parallels Rule 1.11." Rule 1.12 cmt. 1. Rule 1.12 is, however, much shorter and simpler than Rule 1.11. Parallels between the rules include: (1) covering private employment, after employment either by the government or in a public capacity; (2) covering negotiations for employment; and (3) screening to cure conflicts. Whether a covered person "participated personally and substantially" is key to applying both rules. Both rules seek to preclude lawyers from feathering their nests by skewing their actions in public functions.
C. Current Employment Not Covered
Although Rule 1.11 broadly covers conflicts for lawyers currently in public employment, Rule 1.12 does not cover that ground. Ethics rules for current adjudicators are in the Code of Judicial Conduct and ethics rules for neutrals are in Rule 114, Appendix: Code of Ethics of the Minnesota General Rules of Practice for the District Courts.
D. Little Authority
Rule 1.12 has not been frequently applied in case law or commentary.
Until 2014, the Office of Lawyers Professional Responsibility (OLPR) has not addressed Rule 1.12, except for a general reference to conflict screening: "Under rules 1.11 and 1.12, screening is permitted if the lawyer did not personally and substantially participate in a matter giving rise to the conflict. Under these rules there is also a requirement that he screened attorney not receive any portion of the fee from the matter for which he or she was screened." Betty M. Shaw, Avoiding Imputed Disqualification Through Screening, MINN. LAW., Jan. 3, 2005, at 2, 4. In 2014, OLPR reported two admonitions, described below, for violations of Rule 1.12(a). The Restatement does not specifically address the topics covered by Rule 1.12.
II. OVERVIEW
A. "Covered Persons"
The several paragraphs of Rule 1.12 apply to somewhat different categories of adjudicators, clerks, and neutrals. Paragraphs (a) and (b) both apply to adjudicators and neutrals. Paragraph (b) also applies to lawyers serving as law clerks, but not to law students serving as law clerks. Paragraph (c) applies to law firms with which a lawyer covered by paragraph (a) is, or comes to be, affiliated. Paragraph (d) applies only to those who formerly served as partisan arbitrators. "Covered persons" is used in this chapter to refer to those covered by Rule 1.12.
B. "Participated Personally and Substantially"
Rule 1.12(a) prohibits covered persons from representing clients in the matters in which they "participated personally and substantially."
C. Employment Negotiations
Rule 1.12(b) restricts covered persons...
