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Motions to Disqualify Counsel - What are your thoughts?

Are motions to disqualify counsel appropriate in arbitration? Why or why not?

Please provide your thoughts/comments below.

Comments (11)

Paul nicolai:

No. Provider rules do not require that representation be by counsel and many states have ruled that representation in an arbitration proceedings is not the practice of law.

I'm on a Panel that decided one of these motions last week. We denied it because the movant didn't have standing. But more importantly, we thought arbitrators should be able to rely on counsel to ensure that they have no conflicts that would disadvantage a party and thus pollute the arbitration process.

A nightmare. Arbitrators have jurisdiction over the dispute between the parties and not over the lawyers representing the parties. I doubt arbitrators have the ability to discipline an attorney, even if the parties were to agree. Imagine an arbitration clause that allows an arbitrator to discipline a lawyer. Why would parties agree to such a thing? Would a court intervene? Maybe, but that would require a motion by a party, not by the arbitrator. And if there was such a clause, how could the arbitrator act without showing some kind of bias? Can the arbitrator refer the issue to a grievance committee? Yes, but if that happens, is the arbitrator showing bias? Can the arbitrator order a sanction against the lawyer? Doubtful if the arbitrator has no jurisdiction over the lawyer in the first place. AAA Rule 58 speaks to a sanction against a party, not against a party's attorney. The same is true of JAMS Rule 29 and CPR Rule 16. In the end the arbitrator is best off grinning and bearing the pain leaving discipline to someone else. Arbitrator are empowered by law to resolve a dispute and nothing more.

Judge Gerald Harris :

Yes, of course, representatives of parties whether or not attorneys may be seriously conflicted or otherwise inappropriate advocates as when they intend to testify as fact witnesses. A fair hearing is no less essential in an arbitral forum notwithstanding relaxed rules of evidence.

A motion to disqualify counsel may be appropriate under the circumstances of a particular case (e.g., conflicts), but it is within the purview of the courts to decide such a motion and not the arbitrator. An exception exists if the parties agree that the arbitrator should decide the issue. There is caselaw for these principles.

Robert Bartkus:

Commentators would be wise to consult applicable state law, which is hardly uniform and often is silent. Section 2-2:3 of our book discusses some of the cases, including Munich Reinsurance, 500 F. Supp. 2d 272 and Bilderman, 570 NYS.2d 33.

Steven Skulnik:

Al Appel is right. But if counsel is not barred in the US, our courts may not be able to lend support. In that case, it would be up to the tribunal.

Micalyn S. Harris:

Re representation by counsel in arbitration, New York (by caselaw) and Illinois have determined that representation in an arbitration is not the practice of law. States that have determined representation in arbitration is the practice of law present a problem for the tribunal when a non-lawyer seeks to represent a client in an arbitration. If the tribunal permits it, is the tribunal aiding and abetting the unauthorized practice of law? What of law school "advocates" authorized to practice before state and municipal courts and agencies with no mention either way of practice before an arbitration tribunal?

Thoughts are most welcome.

Anonymous:

My experience is that applications are more frequently made to "mess with" opposing counsel or to satisfy some emotional client's imagined grievance than for any actual reason. Arbitrators should be extremely reluctant to grant such motions.

Melvin J,. Kalish:

In a case I had a several years ago, I eliminated the problems outlined above by having the parties and their attorneys execute an agreement submitting the issue of disqualification to me, as arbitrator, for binding and final determination. Based on the evidence and submissions, I disqualified the attorney in question. I afforded the party a reasonable period of time to secure new counsel. The case then went to conclusion without a hitch.

The caselaw which Mr. Bartkus was kind enough to cite answers the question very well. Judge Harold Baer, in Munich Reins. Am., Inc. v ACE Prop. & Cas. Ins. Co., 500 F Supp 2d 272, 273 [SDNY 2007]) stated:

"More broadly, the Supreme Court has distinguished between the procedure and substance of the matter in considering arbitrability and the proper scope of judicial review. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 288 n.1, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995) (citing sources for the proposition that laws regarding arbitrability were "matters of procedure rather than substance, because they were directed solely to the mechanisms for resolving the underlying disputes"); see generally "Steelworkers Trilogy" (United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960);  [*275]  United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960) (holding that questions of substantive arbitrability, i.e., whether the grievance is one that the parties are contractually bound to arbitrate at all, are for the [**7]  courts, not the arbitrator). See also Gwertzman v. Gwertzman, Pfeffer, Tokar & Lefkowit, No. 87-CV-6824 (JFK), 1988 U.S. Dist. LEXIS 13975, 6-7 (S.D.N.Y. 1988) ("Where jurisdiction over a particular type of dispute is statutorily within the exclusive control of the Court, or where judicial enforcement of particular rights is mandated by public policy, an agreement to arbitrate will not be given effect by the courts.").

The issue before the Pennsylvania court, disqualification of an attorney for an alleged conflict of interest, is a substantive matter for the courts and not arbitrators. The Federal Arbitration Act, pursuant to which Munich Re moves this Court, was "designed to provide merely a procedural remedy which would not interfere with state substantive law." Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 411, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (U.S. 1967). Attorney discipline has historically been a matter for judges and not arbitrators because it requires an application of substantive state law regarding the legal profession and results in an enforceable judicial order. Feingberg v. Katz, No. 01-CV-2739 (CSH), 2003 U.S. Dist. LEXIS 1677 (S.D.N.Y. 2003) [**8]  ("The tendency to analogize arbitration to trial, and arbitrator to judge, should. . . be avoided."); Blue Cross and Blue Shield of New Jersey, et al. v. Philip Morris, Inc., 53 F. Supp. 2d 338, 342 (E.D.N.Y. 1999) ("Whether to disqualify counsel is a matter subject to the trial court's sound discretion.") (internal quotations and citations omitted); Robert J. Martineau, The Supreme Court and State Regulation of the Legal Profession, 8 Hastings Const. L.Q. 199, 216 (1981) (noting that, in each state, it is the responsibility of the highest court to dictate standards for education, admission and discipline of attorneys) (citation omitted).

New York and Pennsylvania courts have determined with some degree of certainty that "possible attorney disqualification--is not capable of settlement by arbitration." In the Matter of the Arbitration between R3 Aerospace Inc. and Marshall of Cambridge Aerospace Ltd., 927 F. Supp. 121, 123 (S.D.N.Y. 1996) (citing Bidermann Indus. Licensing Inc. v. Avmar N.V., 173 A.D.2d 401, 570 N.Y.S.2d 33, 34 (App. Div. 1991)) ("The subject matter of the dispute in this case--i.e., possible attorney [**9]  disqualification--is not capable of settlement by arbitration."). See, e.g., Croushore v. Bucanan Ingersoll P.C., 1996 Pa. Dist. & Cnty. Dec. LEXIS 212, 32 Pa. D. & C.4th 142 (Pa. C.P. 1996) ("[B]y agreeing to submit a dispute to arbitration, a party has not given up its right to seek judicial review of its claims that a former attorney or former law firm is breaching fiduciary duties owed to the party, as a former client."); Bidermann Indus. Licensing, Inc. v. Avmar N.V., 173 A.D.2d 401, 402, 570 N.Y.S.2d 33 (N.Y. App. Div. 1991) ("Issues of attorney disqualification . . . involve interpretation and application of the Code of Professional  [*276]  Responsibility and Disciplinary Rules . . . and cannot be left to the determination of arbitrators. . . ."); In re Erdheim and Selkowe, 51 A.D.2d 705, 705, 380 N.Y.S.2d 20 (N.Y. App. Div. 1976) (finding that arbitrators lacked the ability to censure attorneys and that this power "is reserved to the Appellate Division of the Supreme Court in each department.").

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