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Advocate engaged in unethical conduct - What are your thoughts?

If an arbitrator sees that an advocate has engaged in unethical conduct, can/should the arbitrator discipline counsel?

Please provide your thoughts/comments below.

Comments (11)

In those states where acting as an advocate in arbitration is the practice of law, advocates are required to adhere to the ethical obligations imposed by the rules of ethical conduct enacted in that state. Out-of-state counsel may or may not be governed by the ethical rules of the forum state. For example, in New York and California, out-of-state counsel are expressly bound by the ethical obligations of counsel in the forum state. There are states, however, where acting in arbitration is not considered the practice of law and, therefore, out-of-state counsel and, possibly, in state counsel are not bound by ethical obligations. This leads to the question of who, arbitrator or attorney disciplinary authority, has the power to discipline counsel. This is largely unsettled law, though in New York, at least, there is authority for the proposition that arbitrator's lack jurisdiction to disqualify counsel. In the end, it is probably the case that for arbitrators to have jurisdiction to discipline counsel, that authority must fall within the scope of the arbitration agreement. If the arbitrator is to impose ethical obligations on counsel, it should be clear which ethical obligations apply, including whether there are ethical obligations incorporated into the arbitration rule set (e.g., LCIA Rules).

andrew gerber:

The arbitrator has something more important to think about: Getting to the right decision. His/her time and energy (and the related costs to the parties) should be directed to that end, not distracted by the collateral issue of the offending counsel's ethical lapses. That might well be an appropriate object of attention for a judge in a court proceeding. But for an arbitrator, it would be a luxury indulged at the expense of the parties who did not come to the forum for that purpose.

I would carry Jeff Dasteel's conclusion a bit further. If the arbitrator(s) learns that counsel are not bound by ethical obligations in the forum state, then I think they must be defined and included in the arbitration agreement, even if by amendment. It seems to me that proceeding with an arbitration when counsel are not bound by any ethical rules is just setting the stage for a bad outcome.

Paul Marrow:

I've never seen an arbitration clause that allows for this situation. And I know of no rule of the AAA, JAMS, the ICC or CPR that allows an arbitrator to proceed in this manner. So I have to conclude that an arbitrator who disciplines counsel for unethical behavior would be exceeding his/her authority. If the arbitrator is an attorney and feels ethically compelled, the arbitrator could file a complaint with the appropriate grievance committee.If the arbitrator isn't an attorney, he/she could also file such a complaint. This raises the question; if the arbitrator reports counsel for unethical conduct, does the arbitrator have to resign? Resignation isn't looked upon favorably, but this is a very unusual situation and my sense is that resignation would be appropriate. If the arbitrator were to remain having made such a report, it's hard to see how the party who's lawyer has been reported wouldn't demand a resignation based on prejudice or bias. Rather than allow for such a charge and the possibility of vacatur based on the charge, the arbitrator, by resigning, would probably be doing what is best in the long run for the arbitration process and for the parties. Keep in mind, an arbitrator isn't a judge. An arbitrator's powers are limited by the wishes of the parties.

Micalyn S. Harris:

Note that an advocate in arbitration may not be a licensed attorney. In NY for example, FINRA permits a non-attorney to act as an advocate for a claimant and presumably also a respondent.

If the unethical behavior creates problems in the course of the arbitration, does that mean the arbitrator must take action in order to assure fairness? "Discipline" for unethical behavior, for example by a state bar, usually requires a hearing and won't solve the immediate problem of assuring fairness. Does one stop the hearings? Expose the behavior? Anyone have experience with unethical behavior during hearings? If so, what action taken and how did it work out?

I agree that the Arbitrator has no inherent disciplinary authority. But he or she certainly has the responsibility to make sure the unethical conduct does not taint the process by making the hearing unfair to the opposing party, and certainly the responsibility to make sure the conduct does not taint the Award.

Judge Gerald Harris:

Another possible approach to consider; if the unethical conduct impedes the arbitration or adds unnecessary costs or delay, the imposition of sanctions may be appropriate.

William Pastor:

The primary duty of the arbitrator is to conduct a fair hearing and reach a sound decision. That is what the parties have hired the arbitrator to do.

On witnessing apparently unethical conduct by counsel for a party, the arbitrator needs to determine whether a fair hearing is still achievable. If so, going forward seems proper, with the issue of possible reporting reserved until later.

If the behavior seems so extreme that it will preclude a fair hearing, a more difficult decision exists. How to deal with that situation depends on a number of factors, including whether the opponent appears aware of the adversary's ethical violation. The easiest case is when opposing counsel sees the problem, because then he or she can take appropriate action.

The other situation - where the arbitrator sees an ethical violation but opposing counsel does not - is fortunately probably a rare occurrence.

Stanley Sklar:

I suggest that the initial inquiry regarding ethical issues relating to Counsel start with the question: Is the arbitrator a licensed attorney or not? If an attorney then I respectfully submit that the arbitrator is bound by the ethical rules governing attorneys. Once an attorney always an attorney and thus subject to the ethical rules governing attorneys and thus may well be obligated to report unethical conduct of Counsel. I had a case with a similar situation and referred the matter to the case manager who then met with Counsel resolved the issue and we moved on. Non attorney arbitrators may well not have that duty but I follow the old adage, once an attorney always an attorney until I surrender my license.

In most states, attorneys are obligated to report violations of RPCs once he/she becomes aware of such a violation. This could put an attorney-arbitrator in a quandary and on a slippery slope. However, if the adversary is represented by an attorney, that requirement also falls on him/her. A non-attorney arbitrator has no such obligation and most wouldn't be aware of the RPCs in any great detail. Beyond all this, it is not the responsibility of the arbitrator to discipline advocates. However, the arbitrator must ensure a fair process.

Mark F. Brancato:

I agree with Stanley Sklar. If and to the extent that the attorney-arbitrator observes or becomes aware of conduct by an attorney before her that she knows or has reason to know amounts to unethical conduct, I believe she has an ethical obligation to report that conduct to the relevant state's disciplinary board. However, the act of reporting the conduct would itself create circumstances which, in the eye of the attorney in question and/or his client, call the arbitrator's ability to fairly and impartially decide the dispute before her into question. Sadly, the attorney-arbitrator would also have to notify counsel for all the parties and the AAA in some appropriate way that she notified the disciplinary board and either disqualify herself or await the inevitable objection from the affected party and/or the other parties. That said, the potential impact on and disruption if the proceedings cannot dissuade her from complying with her ethical duty.

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