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Unethical Conduct by Counsel - What are your thoughts?

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.

Comments (7)

Dustin F. Hecker:

If the unethical conduct relates to something in the case before him or her, certainly. How and what one "investigates" are the issues. If the unethical conduct had something to do with discovery obligations, there are standards and sanctions that can be applied. If a lawyer has been less than candid with the panel, obviously that can affect one's view of the merits. However, if the possibly unethical conduct has nothing to do with the case or the matters the arbitrator is supposed to decide, I think it would be a mistake to do anything. Our job first and foremost is to decide the dispute in front of us as dispassionately as possible. Calling out a lawyer for unethical behavior that has nothing to do with the case would simply call into question an arbitrator's impartiality and unnecessarily give a party the opportunity to challenge the award.

Judge Gerald Harris:

The arbitrator should question counsel concerning the circumstances, on the record and in the presence of opposing counsel. While an arbitrator does not have the resources to conduct an independent investigation, if he is an attorney he may well have an obligation to report the matter to the appropriate grievance committee after the arbitration is concluded. Opposing counsel may have a corresponding obligation to do so.

Michael Orfield:

I am unaware of any rule in any state that requires an Arbitrator to report unethical conduct. If that is the case, should we nonetheless?
Or is this an internal issue, to be dealt with in whatever manner the Arbitrator sees fit within the case? It certainly should be reported to the AAA case administrator. Do they have any obligation to take such up the line?
And what goes into a finding of unethical conduct? Is there a hearing? What rights does the accused enjoy? Once an Arbitrator becomes involved in any way in such allegations can that Arbitrator still be a a fair and impartial neutral in the case?
I think it would be an equally interesting conversation if we played off some examples of unethical conduct (e.g. lying about availability, falsifying documents, obtaining information that is protected by the attorney client privilege)

An arbitrator may believe that an attorney before him has done something relative to the case that is unethical. Proving it would a very different matter and in my view outside the classical powers of an arbitrator. What is within our power and perhaps expected of us, is to weigh all the issues in the case in preparing an award. Normally, these are actions taken by witnesses or quality of evidence presented. However, if there is good reason to believe that one of the parties' attorneys has been unethical in a way that could affect the outcome, then I would certainly consider that in the award. Beyond that, we could always report the behavior to the authorities as any citizen could.

Robert L. Cowles:

The comments of the first Arbitrator who responded is right on. The only thing I would suggest is that any conversations about potentially unethical conduct should be between the Arbitrators and the lawyers---not the parties.

Robert L. Cowles

I think it depends entirely on the nature of the alleged conduct. If it appears to have nothing to do with the issues, the arbitrator (panel) should probably ignore it. If however, it may bear upon the matter before the arbitrator, it should be discussed with all counsel, after which a decision can be made as to an appropriate remedy. In the unlikely event the arbitrator believes the attorney may be planning some sort of criminal conduct, the appropriate authorities should be notified.


I agree with the above suggestion that if the arbitrator has a good faith belief that unethical conduct affects the matter before him or her, there is an obligation to develop the subject on the record and to impose sanctions or draw an adverse inference depending on the conduct and its consequences. If the arbitrator is an attorney, in most jurisdictions the improper conduct probably has to be reported to the appropriate disciplinary authority, and if the perceived conduct is not directly related to the proceedings before the arbitrator, I would probably develop enough on the record to have a good faith basis to believe the report would be justified. I would not do any independent "investigation" because that is neither the role of the arbitrator, and many really would not have the knowledge or experience to do so without causing collateral consequences.

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