Who Is Responsible for Ethical Behavior by Counsel in Arbitration? - Chapter 25 -AAA Handbook on Arbitration Practice
Steven C. Bennett is a partner in the New York City offices of Jones Day and the author of ARBITRATION: ESSENTIAL CONCEPTS (2002).
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). 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.
There is no similar specific code of ethcs for counsel in arbitration. Attorneys are subject to relevant state codes of lawyer conduct, generally modeled on the American Bar Association's Model Rules of Professional Conduct (ABA Model Rules). 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 chapter are: Who is responsible for enforcing ethical conduct by attorneys in arbitration? What are the challenges involved? This chapter 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 chapter 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 imposition of appropriate sanctions.