Chapter 11 - § 11.9 • ETHICAL STANDARDS OF THE ARBITRATOR

• Jurisdiction: Colorado

§ 11.9 • ETHICAL STANDARDS OF THE ARBITRATOR

§ 11.9.1—Colorado Rules Of Professional Conduct

As to arbitrators who are lawyers, few provisions of the Colorado Rules of Professional Conduct have a direct bearing. Rule 1.12 prohibits a lawyer from representing a party in a matter in which the lawyer served as an arbitrator,⁷⁸ unless both parties consent in writing. This disqualification is imputed to the lawyer's entire firm,⁷⁹ at least unless the lawyer is screened and notice given.

Rule 2.4, Lawyer Serving as Third-party Neutral, provides:

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

ABA Model Rule of Professional Conduct 2.4, not adopted by Colorado, requires a lawyer serving as a third-party neutral to advise all unrepresented parties that he or she is not representing them.

§ 11.9.2—ABA/AAA Code Of Ethics

In 2004, the American Bar Association and the American Arbitration Association adopted the "Code of Ethics for Arbitrators in Commercial Disputes." (The term "Commercial Disputes" as used therein is much broader than as used by the AAA in its rules.) As such, the Code is not binding on anyone.⁸⁰

The AAA has not incorporated the Code into its rules. However, the AAA has made it substantially binding on arbitrators who serve in AAA arbitrations. Specifically, the notice of appointment executed by an AAA arbitrator provides:

I attest that I have diligently conducted a conflicts check, including a thorough review of the information provided to me about this case to date, and that I have performed my obligations and duties to disclose in accordance with the Rules of the American Arbitration Association, Code of Ethics for Commercial Arbitrators and/or all applicable statutes pertaining to arbitrator disclosures.

I understand that my obligation to

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