Chapter 10 - § 10.2 • THE RIGHT OF A PARTY TO BE REPRESENTED IN ARBITRATION

• Jurisdiction: Colorado

§ 10.2 • THE RIGHT OF A PARTY TO BE REPRESENTED IN ARBITRATION

§ 10.2.1—The Right Of A Party To Be Represented By An Attorney

The Colorado Revised Uniform Arbitration Act (CRUAA), C.R.S. § 13-22-216 (2016), expressly provides that a party to an arbitration may be represented by an attorney. The Federal Arbitration Act (FAA) is silent on the subject, but the right to counsel in arbitration no doubt also exists in arbitrations governed by the FAA under federal common law.

Can this right to be represented by counsel be waived at the time of or prior to the arbitration? The CRUAA, C.R.S. § 13-22-204(2)(d) (2016), provides that the right to be represented cannot be waived prior to the controversy arising, implying that it can be waived after a controversy arises. Thus, at least under the CRUAA, the parties cannot agree prior to a controversy arising not to be represented by attorneys. This statute seems to provide logical answers and probably would be adopted as a matter of common law.

The American Arbitration Association (AAA) rules also provide that a party may be represented by counsel.¹ If adopted by the parties, that rule governs, although it is doubtful such rules can supersede state statutes or rules on the subject.

§ 10.2.2—The Right Of A Party To Be Represented By An Attorney Not Admitted To Practice In Colorado

Must the lawyer retained to represent a party in arbitration be admitted to practice law in the jurisdiction in which the arbitration is to be held? Can an arbitrator "admit" a foreign lawyer pro hac vice? Is the representation of a party in arbitration the practice of law?

Most lawyers blithely ignored these issues until the California Supreme Court decision in Birbrower, Montalbano, Condon & Frank, P. C. v. Superior Court.² Birbrower held that a New York lawyer not licensed in California appearing for a party in an arbitration held in California could not sue to collect his fees in California, even fees for services performed in New York where he was licensed to practice law.

Prior to Birbrower, several courts had held that representing a party in arbitration was not the practice of law.³ Indeed, other courts have refused to follow the principles of Birbrower.⁴ For example, the Illinois Appellate Court held that the fact that a party's attorney was not admitted to practice in Illinois was irrelevant to the validity of the arbitration award. Moreover, it was within the arbitrator's authority to permit an out-of-state attorney to participate in the arbitration.⁵

After the Birbrower decision was rendered, the California Supreme Court issued a rule allowing out-of-state lawyers to obtain pro hac vice admission for purposes of appearing in an arbitration conducted in California.

C.R.S. §§ 12-5-101 and -112 define the requirement to be licensed to practice law.

12-5-101. License to practice necessary. No person shall be permitted to practice as an attorney . . . or to commence, conduct, or defend any action, suit, or plaint in which he is not a party concerned in any court of record within this state . . . without having previously obtained a license or other authorization to practice law pursuant to the supreme court's rules governing admission

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