Who Is Responsible for Ethical Behavior by Counsel in Arbitration
Bennett, Steven C., Dispute Resolution Journal
The author explains why attorneys must comply with applicable codes of professional conduct when they serve as counsel in arbitration proceedings and why it falls to arbitrators to deter and penalize unethical behavior by counsel that would affect the fairness of the proceedings.
Arbitration is a significant (and growing) part of today's system of justice, albeit a largely private one. The ethical conduct of parties and attorneys in arbitration proceedings is essential to the legitimacy of the arbitration process. Arbitrators (at least in American Arbitration Association (AAA) proceedings) must follow the Code of Ethics for Arbitrators in Commercial Disputes (AAA/ABA Code).1 This code stresses that arbitrators, as dispensers of justice, have a responsibility to the public as well as to the parties who request assistance in the resolution of disputes.2
There is no similar specific code of ethics for counsel in arbitration. Attorneys are subject to relevant state codes of lawyer conduct, generally modeled on the American Bar Association's Model Code of Professional Conduct (ABA Model Code). The prevailing view is that these codes apply to lawyers who serve as advocates in arbitration. But enforcing these ethical obligations in arbitration is another matter.
The questions addressed in this article are: Who is responsible for enforcing ethical conduct by attorneys in arbitration? What are the challenges involved? This article also suggests ways that arbitrators may encourage ethical and deter unethical conduct by parties and counsel. In addition, it suggests that arbitration-sponsoring institutions should create ethics committees whose advice arbitrators may seek when they are unsure whether they have authority to address particular unethical conduct. Finally, this article concludes that arbitrators must take primary responsibility for policing ethical violations that affect the fairness of proceedings. Arbitrators must take reasonable steps to deter and, when appropriate, penalize such conduct, including the imposition of appropriate sanctions.
Is Ethical Misconduct by Counsel a Serious Problem in Arbitration?
There is no documented, empirical answer to the question of the extent of unethical conduct in arbitration. Information on the scope of unethical behavior by attorneys in arbitration is largely anecdotal. For example, one commentator, reflecting on his 25 years' experience as a securities arbitrator, quickly recalled at least a dozen examples of unprofessional conduct by counsel.3 If every arbitrator could so easily cite such instances of misconduct, a serious problem could appear.
The same commentator suggested that ethical violations could have serious consequences for parties and tribunals and threaten the public's confidence in arbitration as a viable dispute resolution system. For example, such violations could "result in unnecessary motions, longer hearings, duplication of effort and wasted time." Unethical behavior, moreover, could "slow the dispute resolution process and increase the cost of arbitration."4
The reputation of arbitration as a fair process certainly would be adversely affected if attorneys felt free to engage in unethical conduct either because the arbitration process is flexible and for the most part private, or because the attorneys in arbitration are unlikely to see the same arbitrators more than once.
Arbitrators may conclude that enforcement of ethical standards upon counsel in arbitration is not part of an arbitrator's job. Arbitrators are charged with deciding only the specific issues submitted to them for resolution. They are generally appointed through a private process, and they are often subject to a duty of confidentiality. Also, reviewing courts generally defer to arbitrators and are reluctant to inquire into the conduct of arbitration proceedings. Thus, the temptation to ignore misconduct may be great. But it is clear that at least some minimal ethical standards should apply to attorneys in arbitration. …