legal written memorandum
Client sued law firm Big Firm LLP for malpractice. Big Firm LLP cross-complained to collect on unpaid fees. The matter was ordered to arbitration based upon the arbitration clause contained in the retainer agreement.
Retired Judge was invited to serve as arbitrator. He was familiar with Big Firm LLP because it had represented clients in his courtroom. That was over 10 years ago. When Retired Judge retired from the bench, he asked the managing partners of several prominent firms to provide him with a reference so that he could join an exclusive organization featuring prominent neutrals as its members. One such reference was the managing partner of Big Firm LLP. Retired Judge has otherwise had no professional or personal relationship with the managing partner of Big Firm LLP.
Q-1: Does the arbitrator have an ethical obligation to recuse himself decline the invitation to serve?
Q-2: If he accepts the appointment, does the arbitrator have a duty to disclose the fact that Big Firm LLP previously appeared before him when he was on the bench?
Q-3: Does he have a duty to disclose the fact that 10 years ago the managing partner of Big Firm LLP provided him with a reference that helped him start his neutral career?
Q-4: What recourse do the parties have if the arbitrator makes the disclosure prior to his appointment being confirmed?
Q-5: What recourse do the parties have if the arbitrator does not make the disclosure prior to his appointment being confirmed and the losing party later discovers the fact that the managing partner of Big Firm was a reference for the arbitrator when he started his career as a neutral?
Q-6: Assume a different set of facts relative to Judge Smiths appointment:
The managing partner of Big Firm was not a sponsor or reference for
Judge Smith.
Big Firm is being represented by an attorney in the Los Angeles office of Mega Firm.
Judge Smiths appointment as arbitrator was confirmed and he has presided over the preliminary hearing and several case management conferences, and the dispute between Big Firm and ABC Land is set for evidentiary hearing in May 2021.
While sitting at his desk on Friday, March 26, 2021, Judge Smith receives an email from Jim Keys, a partner in the San Francisco office of Mega Firm. He says that he is looking for a mediator in Southern California in a complex business dispute that will most likely require two or three days of mediation due to the complexity of the issues and the number of parties involved in the dispute.
(a) Should Judge Smith respond to the email?
(b) If he responds to the email, what should he say to Jim Keys? And does Judge Smith have a duty of disclosure in the pending arbitration between Big Firm and Client? Are there any circumstances where Judge Smith can ethically serve as a neutral in both matters?
(c) What policy reasons support an implied or explicit ethical duty on the part of commercial arbitrators to decline professional engagements by parties and/or attorneys in the pending matter?
(d) What do you think about the advance notice requirement of Californias Standard 12(b) specifically 12(b)(2)(B), which allows an arbitrator to accept post-appointment engagements of any kind, nature and number without further notice to the parties or their counsel IF at the time of his / her appointment he / she includes in his / her disclosures that (1) he or she will entertain post-appointment offers of employment or new professional relationships while the current arbitration is pending, and (2) he / she will not inform the parties if he or she subsequently receives or accepts such an offer of employment or new professional relationship.
(e) Do you think that the making of such an advance disclosure is sufficient to eliminate the potential for actual or implicit bias based on the number, nature or extent of subsequent engagements that a party should be deemed to have waived the right to seek vacatur based on evident or actual partiality if the party does not object to the arbitrators appointment after receiving such a disclosure?
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