June 6, 1996
When a lawyer serves as an arbitrator, the Michigan Rules of Professional Conduct impose no duty of disclosure of present or former relationships with other persons or entities. Such a duty, if any, may arise from contract, or from other applicable law or rules.
References: MRPC 1.7, 1.8, 1.9, 1.12, 3.3, 4.1, 6.5.
The Committee is asked whether ethics rules impose any duty upon a lawyer serving as a single arbitrator to make disclosures regarding present or former relationships with other persons or entities related to the arbitration matter.
Disclosure is required in the course of a client's matter under MRPC 4.1, or when dealing with clients pursuant to MRPC 1.7 and 1.8, or to prospective clients pursuant to MRPC 1.9 and 1.12, or to a tribunal when MRPC 3.3 is triggered. When appointed or serving as an arbitrator, the lawyer is not serving clients, therefore; these rules do not apply to require disclosure.
The Michigan Rules of Professional Conduct do contemplate lawyers serving as adjudicative officers in MRPC 1.12 and 6.5, but impose no duty of disclosure in that function.
Duties to disclose present or former relationships do often arise in arbitrations. For example, arbitrators licensed by the American Arbitration Association are bound to abide by the AAA "Code of Ethics for Arbitrators," which has also been adopted and recommended by a Special Committee of the American Bar Association. That Code contains a variety of detailed disclosure rules involving conflicts, compensation and other matters. Other disclosures might be required by the controlling arbitration contract, agreement or engagement. Still other disclosures may be advisable in view of controlling law, e.g., Uniform Arbitration Act, MCL 600.5001-.5035; Federal Arbitration Act, 9 USC §§1-16; Lifecare International Inc v CD Medical Inc, 69 F3d 429 (CA11 1995). These disclosure duties apply to all arbitrators, whether or not they are lawyers.
When a lawyer is appointed or serving as an arbitrator, the Michigan Rules of Professional Conduct impose no duty of disclosure of present or former relationships with other persons or entities.