Ethics In Arbitration

Attorney Steven Bennett just published an excellent article entitled "Who Is Responsible For Ethical Behavior By Counsel In Arbitration, 63 Jul Disp. Resol. J. 38 (May-July 2008)(available via Westlaw). The answer to the questions raised by this article are not easy. This is because underlying the regulation of attorney ethical behavior lies the question whether arbitration itself is the practice of law. In fact, many arbitrators are not even lawyers, so having them involved in ethical issues seems a bit odd.

The author surveys the scant case law that is available. Not surprisingly, the case law in this area is conflicting. The author purposes a practical solution to this problem Institutional arbitration associations should start ethics panels whom arbitrators can turn to for guidance or these panels can be given the authority to sanction offenders themselves.

While I believe Attorney Bennett is on to something here, I do not agree that these arbitration panels or arbitrators should be given the responsibility to decide attorney ethical issues. Instead, this panel should be given the authority to decide ethical issues according to a code of ethics that the tribunal itself may adopt. That ethical tribunal would have the ability to debar attorneys and others from appearing before that panel for conduct it deems sanctionable. The NLRB regulates conduct of attorneys and non-attorneys that  appear before it and arbitration tribunals could do the same.

This issue is ripe for law review commentary.

Mitchell H. Rubinstein