Chapter 10 - § 10.7 • REGULATION OF PERSONS REPRESENTING PARTIES IN ARBITRATION

• Jurisdiction: Colorado

§ 10.7 • REGULATION OF PERSONS REPRESENTING PARTIES IN ARBITRATION

As discussed in § 10.2, it is generally recognized that a party in arbitration may be represented by either a lawyer or non-lawyer. The issue then becomes, aside from unauthorized practice of law issues discussed in § 10.6, who has the power to regulate those representatives? See also §§ 14.6, 14.7, and 16.6.9 as to the imposition of sanctions.

§ 10.7.1—Regulation Of Lawyers Appearing In Arbitration

Generally, disqualification of an attorney for an alleged conflict of interest is held to be a matter for the courts and not the arbitrator.¹⁹

Generally, a lawyer who represents a party in arbitration or mediation is subject to the rules of the jurisdiction in which he or she is admitted, and perhaps of the jurisdiction in which he or she is appearing. However, the court may not have inherent power to sanction a lawyer for alleged misconduct during arbitration.²⁰

§ 10.7.2—Disqualification Of Lawyer Representing A Party

The issue of who has supervisory power over lawyers representing parties in arbitration is substantially unresolved. See generally § 10.2.

Judicial Power to Disqualify Attorney

It appears that upon motion of a party in arbitration, and perhaps of the arbitrator, a court has jurisdiction to disqualify (for a conflict) a lawyer from representing a party in arbitration.²¹

Arbitrator Power to Disqualify Attorney

Under a broad form arbitration clause (including all "other matters in question arising out of, or relating to, this agreement . . .") a Florida court held that the issue of disqualification of an attorney was an "other matter in question arising out of or relating to" the agreement, and therefore was to be determined by the arbitrator.²² Similarly, The Delaware Chancery Court held that whether a law firm representing one party should be disqualified for ethical breaches related to electronically stored information (ESI) were issues for the arbitrator "in the first instance."²³

See Djinis & Bazil, "Attorney Disqualification: Legal Procedural and Tactical Considerations," Practicing Law Institute, PLI Order No. BO-0ING (2003); Jacobas, Rohner & Hefty, "Conflict of Interest Affecting Counsel in International Arbitrations," Mealey's Int'l Arb. Rep. (Aug. 2005).

Some courts have considered issues of lawyers' professional responsibility and disqualification to be for the court.²⁴ However, the arbitrator may have inherent powers arising from his or her authority to control the...