Does a lawyer serving as an arbitrator have an ethics-rule duty to disclose present or former relationships with the parties or others?

Plain-English summary

The Committee was asked whether the ethics rules impose any duty on a lawyer serving as a single arbitrator to disclose present or former relationships with persons or entities related to the arbitration matter.

The opinion concluded the Michigan Rules of Professional Conduct impose no such duty. It reasoned that the rules requiring disclosure, MRPC 4.1 (truthfulness in statements to others), MRPC 1.7 and 1.8 (duties to clients), MRPC 1.9 and 1.12 (duties to prospective clients and former-adjudicator conflicts), and MRPC 3.3 (candor to a tribunal), all operate in the context of serving clients or appearing before a tribunal. A lawyer appointed or serving as an arbitrator is not serving clients, so those rules do not require disclosure. While MRPC 1.12 and 6.5 contemplate lawyers serving as adjudicative officers, they impose no disclosure duty in that function.

The opinion noted that disclosure duties do often arise in arbitrations, just not from the ethics rules: arbitrators under the American Arbitration Association are bound by the AAA Code of Ethics for Arbitrators (also adopted by an ABA special committee), which contains detailed conflict, compensation, and other disclosure rules; further disclosures may be required by the controlling arbitration contract or engagement; and others may be advisable under controlling law such as the Uniform Arbitration Act, the Federal Arbitration Act, and cases like Lifecare International Inc v. CD Medical Inc. The opinion observed these duties apply to all arbitrators, whether or not they are lawyers.

Currency note

This opinion was issued in 1996, before later amendments to the Michigan Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer-arbitrator disclose past relationships under the ethics rules?

A: No. The opinion concluded the Michigan Rules of Professional Conduct impose no duty of disclosure on a lawyer serving as an arbitrator.

Q: Why don't the disclosure rules apply?

A: The opinion concluded those rules (MRPC 4.1, 1.7, 1.8, 1.9, 1.12, 3.3) operate when serving clients or appearing before a tribunal, and an arbitrator is not serving clients in that role.

Q: So are there no disclosure duties at all in arbitration?

A: There can be. The opinion noted disclosure duties often arise from the AAA Code, the arbitration contract, or other law such as the Uniform and Federal Arbitration Acts, and those apply to all arbitrators, lawyer or not.

Background and rules framework

The opinion interpreted the disclosure-related Michigan rules, MRPC 4.1 (Model Rule 4.1), MRPC 1.7 and 1.8 (Model Rules 1.7, 1.8), MRPC 1.9 and 1.12 (Model Rules 1.9, 1.12), and MRPC 3.3 (Model Rule 3.3), concluding none reaches a lawyer acting as arbitrator. It noted MRPC 1.12 and 6.5 contemplate lawyers as adjudicative officers without imposing a disclosure duty. It pointed to the AAA Code of Ethics for Arbitrators, the Uniform Arbitration Act (MCL 600.5001-.5035), the Federal Arbitration Act (9 USC 1-16), and Lifecare International Inc v. CD Medical Inc, 69 F3d 429 (CA11 1995), as the actual sources of arbitral disclosure duties.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / MRPC 1.7, MR 1.8 / MRPC 1.8 (duties to clients)
• MR 1.9 / MRPC 1.9, MR 1.12 / MRPC 1.12 (former clients; former adjudicators)
• MR 3.3 / MRPC 3.3 (candor to a tribunal)
• MR 4.1 / MRPC 4.1 (truthfulness to others); MRPC 6.5 (professional courtesy)

Statutes:

• Uniform Arbitration Act, MCL 600.5001-.5035; Federal Arbitration Act, 9 USC 1-16

Cases:

• Lifecare International Inc v. CD Medical Inc, 69 F3d 429 (CA11 1995), arbitrator disclosure

See also

• Mich Ethics Op. RI-271: disclosures when a lawyer is considered as an arbitrator
• Mich Ethics Op. RI-256: lawyer-neutral dealing with self-represented parties
• Mich Ethics Op. RI-188: file retention for a neutral arbitrator or mediator

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1138&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-268

June 6, 1996

SYLLABUS

When a lawyer serves as an arbitrator, the Michigan Rules of Professional Conduct impose no duty of disclosure of present or former relationships with other persons or entities. Such a duty, if any, may arise from contract, or from other applicable law or rules.

References: MRPC 1.7, 1.8, 1.9, 1.12, 3.3, 4.1, 6.5.

TEXT

The Committee is asked whether ethics rules impose any duty upon a lawyer serving as a single arbitrator to make disclosures regarding present or former relationships with other persons or entities related to the arbitration matter.

Disclosure is required in the course of a client's matter under MRPC 4.1, or when dealing with clients pursuant to MRPC 1.7 and 1.8, or to prospective clients pursuant to MRPC 1.9 and 1.12, or to a tribunal when MRPC 3.3 is triggered. When appointed or serving as an arbitrator, the lawyer is not serving clients, therefore; these rules do not apply to require disclosure.

The Michigan Rules of Professional Conduct do contemplate lawyers serving as adjudicative officers in MRPC 1.12 and 6.5, but impose no duty of disclosure in that function.

Duties to disclose present or former relationships do often arise in arbitrations. For example, arbitrators licensed by the American Arbitration Association are bound to abide by the AAA "Code of Ethics for Arbitrators," which has also been adopted and recommended by a Special Committee of the American Bar Association. That Code contains a variety of detailed disclosure rules involving conflicts, compensation and other matters. Other disclosures might be required by the controlling arbitration contract, agreement or engagement. Still other disclosures may be advisable in view of controlling law, e.g., Uniform Arbitration Act, MCL 600.5001-.5035; Federal Arbitration Act, 9 USC §§1-16; Lifecare International Inc v. CD Medical Inc, 69 F3d 429 (CA11 1995). These disclosure duties apply to all arbitrators, whether or not they are lawyers.

When a lawyer is appointed or serving as an arbitrator, the Michigan Rules of Professional Conduct impose no duty of disclosure of present or former relationships with other persons or entities.