Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Rule 2.10

Third Party Neutral

  • (a) A third party neutral assists parties in reaching a voluntary settlement of a dispute through a structured process known as a dispute resolution proceeding. The third party neutral does not represent any party.
  • (b) A lawyer who serves as a third party neutral
    • (1) shall inform the parties of the difference between the lawyer’s role as third party neutral and the lawyer’s role as one who represents a client;
    • (2) shall encourage unrepresented parties to seek legal counsel before an agreement is executed; and
    • (3) may encourage and assist the parties in reaching a resolution of their dispute; but
    • (4) may not compel or coerce the parties to make an agreement.
  • (c) A lawyer may serve as a third party neutral only if the lawyer has not previously represented and is not currently representing one of the parties in connection with the subject matter of the dispute resolution proceeding.
  • (d) A lawyer may serve as a third party neutral in a dispute resolution proceeding involving a client whom the lawyer has represented or is representing in a matter unrelated to the dispute resolution proceeding, provided:
    • (1) there is full disclosure of the prior or present representation;
    • (2) in light of the disclosure, the third party neutral obtains the parties' informed consent;
    • (3) the third party neutral reasonably believes that a prior or present representation will not compromise or adversely affect the ability to act as a third party neutral; and
    • (4) there is no unauthorized disclosure of information in violation of Rule 1.6.
  • (e) A lawyer who serves or has served as a third party neutral may not serve as a lawyer on behalf of any party to the dispute, nor represent one such party against the other in any legal proceeding related to the subject of the dispute resolution proceeding.
  • (f) A lawyer shall withdraw as third party neutral if any of the requirements stated in this Rule is no longer satisfied or if any of the parties in the dispute resolution proceeding so requests. If the parties are participating pursuant to a court referral, the third party neutral shall report the withdrawal to the authority issuing the referral.
  • (g) A lawyer who serves as a third party neutral shall not charge a fee contingent on the outcome of the dispute resolution proceeding.
  • (h) This Rule does not apply to joint representation, which is covered by Rule 1.7.

Comment

[1] This Rule sets forth conflicts of interest and other ethical guidelines for a lawyer who serves as a third party neutral. Dispute resolution proceedings that are conducted by a third party neutral include mediation, conciliation, early neutral evaluation, non-binding arbitration and non-judicial settlement conferences.

[2] A lawyer who serves as a third party neutral under this Rule or as a mediator under Rule 2.11 is engaged in the provision of a law-related service that may involve the application of a lawyer's particular legal expertise and skills. The standards set forth in this Rule, however, do not amount to a determination that a lawyer who serves as a third party neutral pursuant to this Rule or as a mediator pursuant to Rule 2.11 is engaged in the practice of law. The determination of whether a particular activity constitutes the practice of law is beyond the scope and purpose of these Rules.

[3] A lawyer serving as third party neutral shall not offer any of the parties legal advice, which is a function of the lawyer who is representing a client (See Preamble:  A Lawyer’s Responsibilities). A third party neutral may, however, offer neutral evaluations, if requested by the parties. Special provisions under which a lawyer-mediator can offer certain neutral evaluations are contained in Rule 2.11.

[4] Confidentiality of information revealed in the dispute resolution process is governed by Code of Virginia Sections 8.01-576.9 and 8.01-576.10.

[5] A third party neutral as defined in these Rules does not include a lawyer providing binding arbitration services (See Code of Virginia Section 8.01-577 et. seq.).

[6] The imputation of conflicts arising under paragraph (e) is addressed in Rule 1.10.

Virginia Code Comparison

There was no counterpart to this Rule in the Virginia Code.

Committee Commentary

The Committee adopted this Rule, not part of the ABA Model Rules, to provide guidelines for lawyers who serve as neutrals and who do not represent a party to a dispute or transaction. Following adoption of Virginia Rule 2.10, the ABA adopted Model Rule 2.4 governing third-party neutrals. The Virginia and ABA Rules are substantially different.

The amendments effective January 1, 2004, in paragraph (h), substituted “joint representation” for “intermediation” and substituted “Rule 1.7” for “Rule 2.2”.

Updated: October 29, 2009