Unethical Conduct by Counsel - What are your thoughts?

| 12 Comments

If an arbitrator thinks that counsel has engaged in unethical conduct, does the arbitrator (or full panel) have a duty to investigate to see if that was the case?

Please provide your thoughts/comments below.

12 Comments

I would report this to the AAA, but I don't think the panel has the authority to sanction unethical conduct. It is unlikely that if the arbitrator senses it so does opposing counsel. I would leave it to her or him to determine how to proceed in any of the obvious ways. As counsel I learned that my adversary had confronted one of my witnesses. I confronted him (he claimed to be the ethics advisor in his rather large firm) and we resolved the matter. I would have found it an intrusion if the panel had stepped in and potentially caused a disqualification and a resultant long delay in the proceedings.

What would be the basis for an arbitrator doing such a thing? Where would such a duty come from? The rules of the AAA don't authorize such an investigation. I've never seen an arbitration clause that grants such authority and I seriously doubt such a clause has ever existed. And wouldn't such an investigation be a compromising of neutrality? Wouldn't the arbitrator have to disclose the investigation to the parties? And would anyone want to let that arbitrator continue to serve? Wouldn't this be disruptive to the process?

An arbitrator isn't a policeman. An arbitrator isn't a judge. An arbitrator's obligation is to do that which the parties have asked for, i.e. decide the issues in the case and no more. A judge, on the other hand, has a duty to the law, first and foremost. Judges can and should refer perceived misbehavior by a lawyer to a grievance committee and can do so without being accused of compromising neutrality.

If an attorney acts badly, the party being prejudiced has the power to file a grievance and doesn't need the permission of anyone, including the arbitrator, to do so.

Paul Marrow

Just as arbitrators aren't supposed to independently investigate matters that come up in a case, it seems to me that investigating one of the client attorney's actions would fall in that same category.

If I thought that one of them had done something inappropriate, I would bring it up in the hearing - perhaps the opposing counsel might want to pursue the matter.

Of course one recourse that we all have is to take anything that comes up in the hearing into account when it comes to constructing the award.

An arbitrator, who is a licensed attorney in the jurisdiction in which the suspected unethical conduct transpired, may have a duty under RPC to take action under the Rules. This is a complicated decision requiring research, and thought before acting.

In any instance, the immediate question is whether the conduct has interfered with due process, or the gathering of evidence in the matter before the arbitrator.

I'll be interested in the responses of some of our retired judges who have joined the arbitration community.

Pat Westerkamp

I believe arbitrators, if they are attorneys, have a professional obligation to report the unethical conduct of attorneys committed in their presence to the Grievance Committee. Such action should be taken only if the violation is patent and, as a practical matter, should be deferred until the arbitration has been concluded.
Judge Gerald Harris

I agree that arbitrators should not independently investigate matters and since the question here asks whether "the arbitrator or full panel have a duty to investigate"--my answer is: There is no duty. However, a lawyer's ethical misconduct presents a challenge for lawyers serving as arbitrators. Lawyers have reporting obligations imposed upon them by the Rules of Professional Conduct when they have actual knowledge of the misconduct. The majority of states' statutes do not contemplate the conflict between the lawyer disclosure requirements and arbitration confidentiality, and they don't provide mechanism to deal with this conflict.

While an arbitrator does not have a duty to investigate possible unethical conduct, the issue is more difficult where an arbitrator is a lawyer and has actual knowledge that corrupt or dishonest behavior has taken place. The ABA Canons of Professional Ethics provides in Cannon 29 that "lawyers should expose without fear or favor before proper tribunal corrupt or dishonest conduct in the profession". Canon 41 may also apply "when a lawyer discovers that some fraud or deception has been practiced." However, I think that any duties imposed by these canons would be satisfied if the arbitrator reports what he knows to the AAA.

In New York, an arbitration is considered a "tribunal" under the Rules of Professional Conduct. Also, the AAA has Standards of Conduct for Parties and Party Representatives. To the extent that unethical conduct violates those standards, applicable arbitration rules or orders of the arbitrator, I do think it is appropriate for an arbitrator to raise the issue of possible ethical violations and potential remedies for the same as necessary to preserve the integrity of the proceeding.

The key word in the question is "thinks" implying no certainty. In my view the arbitrator has no duty nor authority to go further with this issue, especially when said arbitrator, like myself, is not an attorney. But I would refer the issue to the AAA case manager.

I have not faced the problem of unethical conduct in arbitration or researched it so my response is provisional.
My inclination is to go with the comments that there is no obligation to report the conduct to the applicable ethics committee. But the comment to check the applicable RPC rule would be advisable.
I certainly would report it to the arbitral institution if there is one.
Arbitration is fundamentally a private process that is supported by limited judicial supervision and enforcement. It is not always easy to identify whether rules applicable to a lawyer in the practice of law are applicable to arbitration.
This topic is certainly worth a seminar.

In the case of a three members panel I believe that in the least the arbitrator has the obligation to share the suspected unethical conduct by an attorney with the panel. I agree that the panel's authority may not extend to sanctioning the attorney for the unethical behavior but exposing the situation is in some cases enough to have the attorney cease and desist! When confronted with a situation such as this one I believe it is the duty of the arbitrator to share the details with his or her co-panelists. In one case I was exposed to such a behavior during a break at a hearing. I shared the details of the incident with my co-panelists. The President of the tribunal chose not to mention the collective knowledge with counsel but during the hearing reiterated to counsel that ex-parte communications of any kind was not allowed and that was sufficient for the attorney to realize that his unethical behavior was exposed and that resulted in the matter proceeding without further incidents.

I conclude that the arbitrator does not have a duty to investigate a suspicion of unethical conduct and should not do so. If the arbitrator did investigate, it creates an adversarial position with that counsel, so the arbitrator loses the position of neutrality. It raises the administrative question of whether counsel is entitled to some type of due process, such as notice of an investigation, procedural rights, etc. And the party represented by counsel may suffer prejudice in the case from counsel's actions, even if the facts of the case do not warrant it. Of course, opposing counsel can complain to the appropriate disciplinary body, which may then perform its own investigation.

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This page contains a single entry by Jeffrey Zaino published on January 3, 2017 10:14 AM.

Implicit Biases - What are your thoughts? was the previous entry in this blog.

Deposition Subpoena - What are your thoughts? is the next entry in this blog.

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