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Retired Judges and Disclosures - What are your thoughts?

What is the duty of retired judges serving as neutrals to disclose past cases (e.g. names of past parties and counsel) from the bench? In the case of arbitration, when would failure to disclose create a risk of award vacatur for lack of impartiality?

Please provide your thoughts/comments below.

Comments (15)

I see it as no different from other arbitrators. If the parties or counsel have appeared before you, you disclose it; just as, if you'd sat on a case with the same or similar issues. Both the fact and appearance of impartiality are critically important.

William G Bassler:

I think a retired judge should disclose the cases in which the parties have appeared before him/ her on the bench if known.
As an arbitrator I have no way of doing a conflicts search that capturs 20 years of adjudication.

So in my disclosure I advise counsel that I have not conducted a search of former cases and have not disclosed them unless I specifically remember.
Better safe than sorry.

Recognizing that complete disclosure is the goal,the information available to the former judge (ie, names of past parties in cases) must be disclosed. By contrast, if the former judge had administrative responsibility over a case or party should not prevent the former judge from acting as a neutral in a matter when the judge previously exercised remote or incidental administrative responsibility that did not affect the merits.

Both the IBA Guidelines on Conflicts of Interest in International Arbitration and the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes require that any doubt as to whether or not disclosure is to be made should be resolved in favor of disclosure. Therefore these connections should be disclosed. Whether the failure to disclose creates a risk of award vacatur for lack of impartiality depends on a variety of factors.

In Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968), the US Supreme Court set aside an award where an arbitrator failed to disclose that he had a business relationship with one of the parties. Justice Black's opinion stated that arbitrators should disclose to the parties any information that "might create an impression of possible bias." Justice White concurred but reasoned that "arbitrators are not automatically disqualified by a business relationship with the parties before them if both parties are informed of the relationship in advance, or if they are unaware of the facts but the relationship is trivial" (Commonwealth Coating, 393 U.S. at 150).

Courts disagree about whether Justice Black's opinion in Commonwealth Coatings was a plurality or a majority opinion (compare Schmitz v. Zilveti, 20 F.3d 1043, 1045 (9th Cir. 1994) with Morelite Constr. Corp. v. N.Y. City Dist. Council Carpenters Benefit Funds, 748 F.2d 79, 82 (2d Cir. 1984)).

Some courts have held that an arbitrator's failure to disclose any information that may create an impression of possible bias may, but does not automatically, constitute a ground to vacate an award. Other courts have fashioned a "reasonable person" standard for determining whether an arbitrator is evidently biased (see App. Indus. Mat. Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S., 492 F.3d 132, 139 (2d Cir. 2007) (applying reasonable person standard, holding that an arbitrator's knowledge of a potential conflict and failure to disclose or investigate it indicates evident partiality)).

In U.S. Electronics Inc. v. Sirius Satellite Radio Inc., the New York Court of Appeals adopted the Second Circuit's "reasonable person" standard to determine whether there was evident partiality (934 N.Y.S.2d 763 (2011)).

Anonymous:

He has the same duty as any other arbitrator to disclose. It can be relevant if the parties’ attorney actively practiced in the county where the judge was located.

Lawrence C. Root:

I was on the bench from 1977-2005 and have been practicing ADR since then. There is no way I would be able to make complete disclosures regarding all of the cases I presided over in that time frame and no way to access the data in the two counties I served as many were not electronically recorded in archives and I doubt I'd get access even to those that are. I also sat for two MI Court of Appeals Panels under a program to assist that Bench with a backlog of cases, I think one Panel in the 1980s and one in the 1990s. I have no access to those records.

Cases I sat for that I do remember I can disclose. Those that I do not remember the Parties and Counsel for I simply cannot disclose for a lack of memory.

I can certainly ask counsel if they recall being before me during my bench years, or their present or former firm, but they may not know if their current clients have been before me, perhaps with different counsel.

I submit that former judges disclose their bench years and courts served on, asking counsel and the parties if they recall being in a case before the present judge/arbitrator. If an arbitrator/judge does remember a case it should be disclosed.

I suggest that any rule or interpretation recognize the difficulties of former judges recalling over thousands of cases (in my situation I believe the total number was in the range of 50,000 cases) because the memory of one's entire docket over decades and with no access to searchable databases. The duty in such circumstances should be "as practicable".

Alternatively, it may just more in tune with reality to limit a judge/arbitrator to disclose regarding his ADR practice, recognizing that our resumes list out bench tenures.

Bernard Bonn:

As a commercial arbitrator, I have not been asked to disclose all prior matters, parties and lawyers. Of course, the proceedings generally are considered private and thus would not be disclosed. I also do not have a complete list of those prior matters. I would disclose any relationship with the parties or counsel as should a retired judge, but I doubt that a retired judge would have available such information, although in this day almost all of that information should be available through database searches for most courts. I believe labor arbitrators, on the other hand, do publish and therefore disclose prior cases, but confidentiality is not expected.

Eric Wiechmann:

While it appears that disclosure of parties involved in prior cases should be made, is there need for a jurist to disclose if he has written a decision that appears to be directly on point on a central issue raised in the dispute. This might be of more concern to the parties than a case involving a party in an unrelated dispute. The parties could pick up published decisions in their due diligence, the same as picking up cases involving the other party but what is the duty of the judge?

Robert E. Barras:


Always disclose. Transparency is the key, but it would seem that only knowledge of the participants in dispute at hand is required, albeit disclosure of people and accounts that arise during the hearing require further disclosure.

Judge Gerald Harris:

As a retired judge I would disclose the prior appearance before me of a party or counsel should I recall such appearance. I do not believe that an award would be susceptible of vacatur, on grounds of partiality, unless the non disclosure involved circumstances which rendered unreasonable any claim of failed memory (e.g., the earlier appearance resulted in the rendition of a noteworthy opinion which has been widely cited ).

All arbitrators, without exception, should have a duty to disclose if either party has previously appeared before the arbitrator. Attorney-arbitrators typically conduct a formal conflict check before they confirm appointment to a case because we, and our insurance carriers, think it’s risky to rely solely on our memories. Nowadays, courts are digitizing their old archived files to ensure that case information, including the name of the judge, is readily available. [Thankfully, researching via microfiche is being phased out.] The former jurist might have to contract with a tech services vendor to sort the data into an easy to reference list of parties, but isn't that de minimis effort worthwhile to protect the integrity of the arbitration process?

Federico C. Alvarez:

My sense is that it is more realistic to limit the strict standard of disclosure to the ADR cases, where the neutrals keep records of parties, counsel and witnesses. However, judges are not required to disclose in court cases whether they have handled cases involving the same counsel, parties, or witnesses. It is no conflict for a judge to handle cases involving the same actors. Most judges may have handled hundreds or even thousands of cases involving one district attorney's office, or one public defender's office or one firm handling collections or evictions. Judges do not segregate records of all cases over which they have presided and do not control the records after leaving.

So, a practical approach could be for a judge to make a general statement of the judge's tenure and note that most local counsel may have appeared before the judge at some point, with specific reference only to cases that the judge recalls that have higher relevance. A judge could couple this with an instruction to counsel to disclose any history that their side has had with the judge for the opposing party's consideration.

Like most others have stated, any arbitrator has an absolute obligation to disclose any past interactions with the parties and counsel to the arbitration. Failure to do so could be grounds for vacature. A retired judge might have an issue remembering all of the cases he/she worked on, particularly if he/she was on the bench for a long period of time.

I was a judge for 18 years and then sat as a senior judge in various courts for almost a year. Litigants filed about 5000 cases a year in my court, which adds up to about 90,000.They encompassed almost all kinds of criminal and civil cases. There is no earthly way that I can remember most of those cases, except for the most memorable. Certainly I would disclose any acquaintance or familiarity with counsel and parties but would also instruct counsel to advise me of any dealings that they, their clients or witnesses might have had with with me or my court.

scott link:

As a state district judge, I tried over 400 cases to a jury verdict. I also tried over 100 non jury cases. Further, I held a Motion Docket every Monday morning. There isn't a way to remember or research every lawyer who appeared in my Court. There are obviously some attorneys who I distinctly remember, and information about these individuals is disclosed. Otherwise, I add a statement that the attorneys may have appeared in my court and moreover may have attended one of my fundraisers and contributed money to my campaign.

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