Originally from Alternatives to the High Cost of Litigation

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In the April Alternatives, the author presented an introduction to two hypotheticals of potential ethical dilemmas in arbitration practice by discussing the key Model Rules of Professional Conduct affecting attorneys who work in arbitration. Specifically, he focused on Rule 3.3 to the Model Rules of Professional Conduct, which addresses the lawyer as advocate. He highlighted Model Rule 1.0 definitions, Model Rule 1.6 on confidentiality, and the lawyer’s duty of candor to the tribunal. The rules, published by the American Bar Association, can be found at http://bit.ly/2raI3Bh; Part 1 of this article can be found at “Practice Focus: The Duty of Candor, Inadvertent Production of Documents, and Your Arbitration Work,” 36 Alternatives 51 (April 2018)(available at https://bit.ly/2IKTlEz). Part 1’s hypotheticals discussed document production and the duty of candor. In this month’s concluding Part 2, a third hypothetical analyzes the ethical issues in arbitration representation.
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Facts: A lawyer from State A is representing a claimant from State A in a domestic arbitration that is venued in State B, the first time the lawyer has appeared in a State B-sited arbitration. The lawyer gave no notice to the State B Bar of the lawyer’s involvement in the arbitration. 

Two months before the hearing, the respondent’s counsel asks the tribunal to disqualify the claimant’s counsel for engaging in the unauthorized practice of law, or, in the alternative, to dismiss the arbitration. Are there any ethics implications here?