LAST MODIFIED: JANUARY 2013
Increasingly, one of the most potent weapons being used in litigation is a Motion to Disqualify the opposing counsel. This is occuring more often even in arbitrations. These are very troubling motions, because the consequences are potentially devastating. Moreover, at times they are simply a tactical device designed to disrupt the other side; at other times, they may be the only effective remedy in cases of attorney misconduct. The threshold issue raised by these Motions is whether the Arbitrator, instead of a court, has authority to consider a Motion to Disqualify an attorney based upon an alleged violations of a code of professional conduct.
There appears to be no controlling authority in Florida on this issue, and relatively few cases have addressed the matter in other jurisdictions. However, it seems clear that the majority of courts considering the issue have concluded that disqualification issues arising from purported violations of professional rules of ethics should be resolved by courts, not arbitrators. Typical of the reasoning is the case ofBidermann Industries Licensing, Inc. v. Avmar N.V., 570 N.Y.S.2d 33 (1st Dep’t 1991), pointing out that “Issues of attorney disqualification … involve interpretation and application of the Code of Professional Responsibility and Disciplinary Rules, as well as the potential deprivation of counsel of the client’s choosing,” traditionally issues for a court. See also Northwestern Nat’l Ins. Co. v. Insco Ltd, 2011 WL 4552997 (S.D. N.Y. 2011); Morgan Stanley DW, Inc. v. Kelley & Warren, P.A., 2002 WL 34382748, *2 (S.D. Fla. 2002). Similarly, commentators have opined that “Certain sanctions for attorney misbehavior, such as disqualification from representation for conflicts of interest and disbarment belong under the purview of the courts. “ Bennett, WHO IS RESPONSIBLE FOR ETHICAL BEHAVIOR BY COUNSEL IN ARBITRATION, Dispute Resolution Journal (May/July 2008).
The conclusion that alleged ethical rule transgressions are for the courts to determine is supported by the express language of the Florida Rules themselves. They state that “Lawyers are officers of the court and they are responsible to the judiciary for the propriety of their professional activities. Within that context, the legal profession has been granted powers of self-government. … Supervision by an independent judiciary, and conformity with the rules the judiciary adopts for the profession, assures both independence and responsibility.” (emphasis supplied). In addition, often arbitrators are not lawyers, making it even more inappropriate for arbitrators to interpret attorney codes of professional responsibility.This does not mean that arbitrators cannot control ethical behavior in matters they are handling, but these matters should relate to the integrity of the arbitral process rather than to the application of professional rules of ethics.
In the author’s opinion, disqualification for alleged violations of ethical rules is an issue which must be addressed by a court, not by an arbitrator.