Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 38

WHO IS RESPONSIBLE FOR ETHICAL
BEHAVIOR BY COUNSEL IN ARBITRATION?

Steven C. Bennett

I. Introduction

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.

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 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.

II. 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.