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Evidence Obtained Improperly - What are your thoughts?

What, if anything, should an arbitrator do if evidence is obtained improperly (e.g., through use of a subpoena signed by an attorney in a case governed by the FAA), but the other party does not object to its use and admission at the evidentiary hearing? Assuming the foregoing conduct qualifies as misconduct under NY RPC 8.4, if the arbitrator is an attorney, does s/he have to report that misconduct under NY RPC 8.3?

Please provide your thoughts/comments below.

Comments (7)

It's hard to think of an evidence gathering technique that would constitute attorney misconduct and certainly signing a subpoena authorized by the CPLR would not be. But assuming real misconduct (e.g. burglary), the attorney arbitrator is in a quandary. As a lawyer, she must report misconduct, but as an arbitrator, she must keep confidential everything presented to her. There is no solution that would not cause a breach of one of these duties.

Evaluating the evidence presented is the prerogative of the Panel or the single arbitrator. Generally speaking the Panel does not have to abide by the strict rules of civil procedure. If evidence obtained improperly is presented to the arbitrator (s), the arbitrator (s) has the option to accept or reject that evidence. However, my view is that the arbitrator (s) may accept the evidence at the time it is presented. However, the Panel can debate the propriety and weight it gives to this evidence at the time of its deliberation. Getting into arguments regarding this evidence may hinder the hearing and delay the proceeding.

Anonymous:

Even though it’s arbitration rules of evidence have relevance. Things obtained improperly cannot nor should not be relied upon. Certainly stretches the concept of taking NG it for what it’s worth. Prudence is a better practice.

I think there are two questions: what to do about the conduct and what to do about the evidence.
Conduct: While arbitrators have a duty of nondisclosure, lawyers who have unprivileged knowledge of a violation of the Rules of Professional Conduct that raises a substantial question as to a lawyer’s honesty, trustworthiness or fitness must report it. So the first question for the lawyer-arbitrator is whether the violation is "substantial". Then, if so, I think "confidential" is not "privileged", but if confronted with an actual problem would want to double check. Also, this implicates the panel's powers to punish misconduct before it with or without a referral.
Evidence: not being bound by strict evidence rules I think the first question is, is there a risk the misconduct taints the evidence? A lawyer improperly talking to the other side's party witness (think certain corporate officers) without counsel present may taint the witness's recollection/testimony, but no lawyer misconduct can turn cornstarch into heroin. Based on the facts the panel needs to consider the misconduct in the mix of all admission decision factors, and if admitted, needs to decide whether it can/should offer a remedy to the other side to mitigate the misconduct.

Michael Lampert:

There are two questions here: the evidence and the conduct.
Assuming that the evidence isn't tainted by the misconduct (flour doesn't become heroin by misconduct, but a corporate officer who should not be talked to without corporate counsel present might have their recollection tainted by the improper ex parte chat) hard to see why the evidence, if otherwise proper, shouldn't come in. Although the innocent party might need some procedural aid to mitigate prejudice. (continued)...

As to the conduct there is both the report to disciplinary and the panels inherent powers. On the first, even misconduct (talking as in the prior paragraph, not burglary, will do) must raise a substantial question about the lawyers fitness to be reportable. If true, I think the lawyer-arbitrators duty wins, unless one thinks arb confidentiality is a "privilege" that falls out of the report rule. As to the panel, seems to me its free to do what it will in the matter.

Judge Gerald Harris:

Evidence obtained improperly, by reason of a technical violation of rules, may, nevertheless, be admissible absent an objection. Whether an arbitrator/attorney must report the violation turns on whether the violation may be considered substantial. If a report is required it should be deferred until the arbitration has been concluded.

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