Ethics Advisory Opinion No. 1

Facts Presented:

An arbitrator received a call from Lawyer X who has regularly been on the other side of the parties who have appointed the arbitrator. Lawyer X stated that he was generally reaching out to see whether the arbitrator would be interested in serving as party arbitrator in new cases and asked generally about conflicts with Company A but Lawyer X did not identify a specific arbitration or the facts of any case.

Several months later the arbitrator received a questionnaire to serve as umpire in a case involving Lawyer X and Company A.

Does the arbitrator need to disqualify themself from service under the facts laid out above? 

Topic Areas: Disqualification, Canon I, Canon IV

Opinion:

1. Based on these facts, the arbitrator does not have to disqualify themself as an umpire candidate.
2. The Comments to Canon I of the ARIAS∙U.S. Code of Conduct (“Code”) set forth certain circumstances where a candidate for appointment “must” refuse to serve (Comment 3) and other circumstances where the candidate “should” decline the appointment (Comment 4). As Canon I itself states, arbitrators should uphold the integrity of the arbitration process. The fundamental question for an arbitrator to assess is whether they believe they could serve as an Umpire in a fair, diligent, and objective manner.
3. Comment 3 to Canon I states that an arbitrator “must refuse to serve”:
4. e) where the candidate is nominated for the role of umpire and the candidate was contacted prior to nomination by a party, its counsel or the party’s appointed arbitrator with respect to the matter for which the candidate is nominated as umpire . . . (emphasis added)

Accordingly, the arbitrator should consider the nature and substance of the contact in deciding whether potentially accepting the appointment would be contrary to Comment 3.

4. Lawyer X made an unsolicited phone call and did not discuss any particular matter. Rather, the Lawyer made a general inquiry as to whether the arbitrator had any conflicts with Company A. This discussion between counsel and the arbitrator was not “with respect to the matter” and is therefore not a reason for an umpire candidate to withdraw from consideration.
5. The answer could be different depending on the level or nature of information disclosed in the call. We note that this is not in any way intended to condone attorney behavior designed to preemptively disqualify an umpire candidate, which should never take place. Regardless, an arbitrator must remember their fundamental duty under Canon I to uphold the integrity of the arbitration process and promote fairness and should confirm their ability to do, considering the contents of the call.