Can a party-nominated arbitrator who is a lawyer talk privately with the nominating party about the case and advocate that party's position during deliberations?

Plain-English summary

An arbitration panel had two party-nominated arbitrators and a third chosen by the two nominees; all the arbitrators were lawyers and the parties were represented. The Committee was asked whether a party-nominated arbitrator may communicate with the nominating party about the strategy and merits of the case (before, during, and after the proceeding, outside the presence of the other party and the other arbitrators), and whether such an arbitrator may advocate the nominating party's position during deliberations or must remain neutral.

The opinion concluded the Michigan Rules of Professional Conduct do not specifically govern a lawyer acting as an arbitrator, noting that bodies like the AAA and NASD publish their own arbitrator codes, and that subjecting lawyer-arbitrators but not nonlawyer-arbitrators to the Michigan rules would create conflicting standards on mixed panels. It reasoned that MRPC 3.5 only bars certain ex parte communications with a court and does not reach ADR, so the rules do not prohibit a party-nominated arbitrator from communicating with the nominating party outside the presence of the other party or arbitrators. Likewise, the rules do not bar such an arbitrator from advocating the nominating party's position during deliberations, regardless of the merits.

The opinion added the qualification that, while the rules do not regulate an arbitrator's conduct, a lawyer may not undertake arbitration activities that would breach professional duties, and under MRPC 3.4(c) a lawyer must not knowingly disobey an obligation under the rules of a tribunal except by an open, good-faith refusal. Because arbitration is sometimes court-mandated and a judge requiring arbitration may, absent the parties' agreement, prohibit such communications or advocacy, the opinion concluded it is incumbent on the lawyer to determine whether the judge prohibits the conduct before engaging in it.

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 Treat this page as historical context, not current guidance.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: Can a party-nominated arbitrator talk privately with the party that nominated them?

A: Yes. The opinion concluded the Michigan rules do not prohibit a party-nominated arbitrator from communicating with the nominating party about strategy or merits outside the presence of the other party and arbitrators.

Q: Must a party-nominated arbitrator stay neutral in deliberations?

A: No. The opinion concluded the rules do not bar such an arbitrator from advocating the nominating party's position during deliberations, regardless of the merits.

Q: Does the ex parte rule (MRPC 3.5) apply?

A: No. The opinion concluded MRPC 3.5 bars certain ex parte communications with a court and does not address communications in ADR.

Q: Does court-mandated arbitration change anything?

A: Yes. The opinion concluded that in court-mandated arbitration a judge may prohibit such communications or advocacy, and under MRPC 3.4(c) the lawyer must determine whether the judge prohibits the conduct before engaging in it.

Background and rules framework

The opinion interpreted MRPC 3.5(b) (Model Rule 3.5), which bars certain ex parte communications with a court and does not reach ADR, and MRPC 3.4(c) (Model Rule 3.4), which bars knowingly disobeying an obligation under the rules of a tribunal except by an open, good-faith refusal. It noted the AAA and NASD arbitrator codes and the problem of mixed lawyer-nonlawyer panels.

Citations and references

Rules of Professional Conduct:

• MR 3.5 / MRPC 3.5(b) (ex parte communications with a court; does not reach ADR)
• MR 3.4 / MRPC 3.4(c) (no knowing disobedience of a tribunal's rules)

See also

• Mich Ethics Op. RI-271: disclosures when a lawyer is considered as an arbitrator
• Mich Ethics Op. RI-268: no ethics-rule disclosure duty for a lawyer-arbitrator
• Mich Ethics Op. RI-235: partisan mediator later representing the selecting party

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1144&Type=6

Original opinion text

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

RI-274

June 24, 1996

SYLLABUS

A party nominated arbitrator is not prohibited by ethics rules from communicating with the nominating party about the strategy or merits of a case before, during, and after the arbitration proceeding commences when outside the presence of the other party, or the presence of the other arbitrators. Where arbitration is court mandated, such communications may not be conducted if prohibited by the judge unless stipulated to by the parties.

A party nominated arbitrator is not prohibited by ethics rules from advocating the position of the nominating party during deliberations. However, a lawyer acting as an arbitrator should make sure that such conduct is not prohibited by a judge in the case of court mandated arbitration.

It is incumbent upon a lawyer to determine whether such communications and advocacy are prohibited by the judge before engaging in the conduct.

References: MRPC 3.4(c), 3.5(b).

TEXT

An arbitration panel is comprised of two party nominated arbitrators and a third arbitrator selected by the parties' respective nominees. All the arbitrators are lawyers and the parties are represented by licensed counsel. Two questions have been posed:

• May a party nominated arbitrator communicate with the nominating party about the strategy and merits of a case before, during, and after the arbitration proceeding commences when outside the presence of the other party, or outside the presence of the other arbitrators?

• May a party nominated arbitrator advocate the position of the nominating party during deliberations, or must the arbitrators remain "neutral"?

The Michigan Rules of Professional Conduct do not specifically address the appropriate ethical standards for a lawyer when acting in the capacity of an arbitrator. However, bodies such as the American Arbitration Association and the National Association of Securities Dealers, which themselves operate formal alternative dispute resolution (ADR) systems, typically have published their own codes of ethics or rules for arbitrators. Arbitrators may be lawyers or nonlawyers; to subject lawyers who are acting as arbitrators to the Michigan Rules of Professional Conduct while nonlawyers are not subject to the Michigan Rules of Professional Conduct would, in all likelihood, create conflicting ethical standards in many situations. The questions now before the Committee deal with arbitration panels comprised entirely of lawyers. However, it is not uncommon to have arbitration panels that are comprised of both lawyers and nonlawyers. Any resolution of the pending questions that is only binding upon lawyers may affect the feasibility of having both lawyers and nonlawyers on the same arbitration panel.

MRPC 3.5 only prohibits certain ex parte communications with a court and does not address ex parte communications in the context of ADR systems. Accordingly, the Michigan Rules of Professional Conduct do not prohibit a party nominated arbitrator from communication with the nominating party about the strategy or merits of a case before, during, or after the arbitration proceeding commences when outside the presence of the other party, or the presence of the other arbitrators.

While the Michigan Rules of Professional Conduct do not regulate the conduct of an arbitrator, a lawyer may not embark upon arbitration related activities if so doing will result in a breach of professional duties. A lawyer must not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exits. MRPC 3.4(c). Under certain circumstances, arbitration may be court mandated. Absent an agreement among the parties, a judge who requires arbitration may prohibit the type of communications at issue. Therefore, it is incumbent upon a lawyer to determine whether such communications are prohibited by the judge before engaging in such communications.

Similarly, the Michigan Rules of Professional Conduct do not prohibit a party nominated arbitrator from advocating the position of the nominating party during deliberations, regardless of the merits of the position of which he or she is advocating. However, where arbitration is court mandated and where the parties have not stipulated to such conduct, a lawyer should first determine whether such conduct is prohibited by the judge.