Rule Text (verbatim from The Florida Bar)
(a) Definition. A lawyer serves as a third-party neutral when
the lawyer assists 2 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) Communication With Unrepresented Parties. A lawyer
serving as a third-party neutral must 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 must explain the difference
between the lawyer’s role as a third-party neutral and a lawyer’s
role as one who represents a client.
Educational reference. This page summarizes a Florida Rule of Professional Conduct for educational purposes. The rule text and Comment are mirrored from the Florida Bar's official publication and are public domain. The plain-English summary and any commentary are the opinion of Phillips, Hunt & Walker and are general information only — not legal advice. Reading this page does not create an attorney-client relationship. If you believe a Florida lawyer has violated this rule, you can file a complaint with The Florida Bar at floridabar.org. Past results do not guarantee a similar outcome.
What this rule means in plain English
When a Florida lawyer serves as a third-party neutral — mediator, arbitrator, settlement counselor — the lawyer is not representing either side. The rule requires the neutral to inform unrepresented parties that the lawyer is not acting as their counsel and to explain the difference. If a ‘neutral’ starts giving you advice that protects one party’s position over yours, that’s a violation — and a clear sign you need your own lawyer.
Comment (verbatim from The Florida Bar)
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.
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 Association for Conflict Resolution. A
Florida Bar member who is a certified or court-appointed mediator
is governed by the applicable law and rules relating to certified or
court-appointed mediators.
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, subdivision (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 subdivision 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.
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 4-1.12.
Added March 23, 2006, effective May 22, 2006 (933 So.2d 417); amended
November 19, 2009, effective February 1, 2010 (24 So.3d 63); amended
July 7, 2011, effective October 1, 2011 (67 So.3d 1037); amended May 29,
2014, effective June 1, 2014 (140 So.3d 541).
4-3. ADVOCATE