Can a lawyer serve as the party-designated arbitrator for a client they already represent?

Currency note

This opinion was issued in 1984, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rules 4-101 and 5-102 (representing conflicting interests; lawyer as witness) and Business and Professions Code sections 6067 and 6068(e). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

A law firm that had represented a client since 1970 on matters other than the one in arbitration was asked to have a senior partner serve as the client's designated arbitrator in a contractual tripartite (partisan) arbitration. The committee concluded the lawyer could ethically accept the designation. It first noted that no rule or statute bars a lawyer from acting as an arbitrator, and that some California arbitration models expressly provide for attorney arbitrators.

The committee explained that the attorney-client relationship carries continuing duties of undivided loyalty, competent representation, and protection of client confidences and secrets, and that a lawyer acting in any other capacity for the client must still comply with all attorney rules (citing Libarian v. State Bar and Formal Opinion 1982-69). It concluded that a lawyer who accepts designation as a partisan arbitrator should disclose the pre-existing attorney-client relationship to all parties at the outset, to avoid jeopardizing the arbitration result.

On the nature of partisan arbitration, the committee relied on Graham v. Scissor-Tail, Inc. and related cases for the principle that the California Arbitration Act allows complete contractual autonomy in choosing an arbitrator, and that the potential unfairness of a non-neutral arbitrator is not a ground for vacating an award. It concluded that an existing attorney-client relationship between a partisan arbitrator and a disputant is not, by itself, a basis for disqualification unless the arbitration agreement provides otherwise (quoting Dinong v. Superior Court). The role of a party-designated arbitrator in partisan tripartite arbitration is therefore very different from that of a judge, whose mandate is fairness and impartiality.

Reconciling the two roles, the committee found no inherent inconsistency: former Rule 5-102(B) (representing conflicting interests without written consent) does not apply, because the attorney's role requires, and the arbitrator's role permits, advocacy of the client's interests. It concluded that counsel contemplating both roles remains bound by professional standards and should discuss the potential difficulties with the client before accepting, noting for example that the attorney might have to be an adverse witness in a collateral proceeding challenging the award.

Common questions

Q: Can a lawyer be the arbitrator their own client picks in a tripartite arbitration?

A: Yes. The committee concluded that a lawyer who already represents a client on other matters may accept that client's designation as the party-designated arbitrator in a contractual partisan arbitration.

Q: Isn't that a conflict of interest under the rules?

A: The committee concluded former Rule 5-102(B) (representing conflicting interests) does not apply, because in a partisan arbitration the attorney's role requires, and the arbitrator's role permits, advocacy of the client's interests, so there is no inherent inconsistency.

Q: What should the lawyer do before accepting?

A: Per the opinion, the lawyer should disclose the pre-existing attorney-client relationship to all parties at the outset, and should discuss the potential difficulties of the dual role with the client first, for instance that the lawyer might have to be an adverse witness in a proceeding challenging the award.

Background and rules framework

The opinion interprets former California Rules of Professional Conduct 4-101 (lawyer as witness) and 5-102 (representing conflicting interests; 5-102(B) requiring written consent), together with the lawyer's duties of loyalty (Business and Professions Code section 6067), competence (former Rule 6-101), and confidentiality (Business and Professions Code section 6068(e)). It reads those against the California Arbitration Act (Code of Civil Procedure sections 1280 et seq.) and the case law on partisan arbitrators. The subject corresponds today to the rules on a lawyer serving as a third-party neutral and former-judge/arbitrator conflicts (Model Rules 2.4 and 1.12).

Citations and references

Rules of Professional Conduct:

• Former California Rule 4-101 (lawyer as witness)
• Former California Rule 5-102, 5-102(B) (representing conflicting interests; written consent)
• Former California Rule 6-101 (competence)

Statutes:

• Business and Professions Code sections 6067, 6068(e) (loyalty; confidence and secrets)
• Code of Civil Procedure sections 1141.10 et seq., 1280 et seq., 1281.6, 1282, 1282.2, 1286.2 (judicial, contractual arbitration; selection of arbitrator)
• Business and Professions Code sections 6200 et seq. (mandatory fee arbitration)

Cases:

• Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, contractual autonomy to choose an arbitrator; interested arbitrator not barred per se
• Dinong v. Superior Court (1981) 120 Cal.App.3d 300, relationship to a party not a bar to selection
• Libarian v. State Bar (1944) 25 Cal.2d 314, lawyer bound by attorney rules in other capacities
• Arrieta v. Paine, Webber, Jackson & Curtis, Inc. (1976), non-neutral arbitrator not a ground for vacation

Other opinions cited:

• State Bar Formal Opinion 1982-69 (lawyer acting in a law-related dual role)

See also

• CA Ethics Op. 1982-69: Lawyer Also Acting as a Real Estate Broker
• CA Ethics Op. 1984-78: Ex Parte Contact With the Trial Judge

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1984-80.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 1984-80

ISSUE:

May an attorney who is currently representing a client on other legal matters serve as the arbitrator designated by that client in a contractual tripartite (hereinafter "partisan") arbitration?

DIGEST:

An attorney who represents the client in other legal matters may accept that client's designation in a contractual partisan arbitration. However, because the attorney who acts in such a dual role is still bound by the professional standards of an attorney, the attorney should take care to discuss with the client any potential problems which may result from acting in both roles prior to accepting such a designation.

AUTHORITIES INTERPRETED:

Rules 4-101 and 5-102 of the Rules of Professional Conduct of the State Bar of California.

Business and Professions Code sections 6067, 6068, subdivision (e).

DISCUSSION

A law firm has represented client since 1970 on matters other than that now in tripartite arbitration.1 The client requests that a senior partner in the firm participate as client's designated arbitrator in contractual partisan arbitration. (See Code Civ. Proc., 1282, 1282.2.) May the attorney ethically accept the designation of party-designated arbitrator?

May an Attorney Serve as an Arbitrator?

The law of California provides for several arbitration models, including judicial arbitration (see Code Civ. Proc., 1141.10 et seq.), contractual arbitration (Code Civ. Proc., 1280 et seq.) and mandatory fee arbitration (Bus. & Prof. Code, 6200 et seq.).

There is no rule of professional conduct or legislative enactment which expressly prohibits an attorney from acting as an arbitrator. Indeed, some arbitration models provide for attorney arbitrators. (See Code Civ. Proc., 1141.18 and Bus. & Prof. Code, 6200, subd. (c).)

May, an Attorney Who is Currently Representing a Client in Other Legal Matters Serve as the Arbitrator Designated by that Client in a Contractual Partisan Arbitration?

A. The Role of an Attorney.

The existence of an attorney-client relationship creates in the attorney many duties which must be performed on behalf of the client. Of primary importance are the duties of: 1) undivided fidelity and loyalty (Bus. & Prof. Code, 6067 and rules 4-101 and 5-102 of the Rules of Professional Conduct of the State Bar of California); 2) competent representation (rule 6-101 of the Rules of Professional Conduct of the State Bar of California and Bus. & Prof. Code, 6067); and 3) protection of client confidence and secrets (Bus. & Prof. Code 6068, subd. (e)).

In whatever other capacity the attorney may be acting on behalf of the client, the role of an attorney demands adherence to all the rules governing attorney conduct. (See Libarian v. State Bar (1944) 25 Cal.2d 314 [153 P.2d 739] and State Bar of California Formal Opinion No. 1982-69.) Therefore, an attorney acting as an arbitrator on behalf of a client must comply with his/her obligations as an attorney even while assuming the role of an arbitrator.

To avoid jeopardizing the results of the arbitration, an attorney who accepts the designation as a partisan arbitrator should insure that the pre-existing attorney-client relationship is disclosed to all parties at the outset of the proceedings.

B. The Role of a Party, Designated Arbitrator In Partisan Arbitration2

In Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 824, the court relied upon specific provisions of the California Arbitration Act which, in the court's opinion, allow for "complete contractual autonomy in the choice of an arbitrator.'' (See also, Code Civ. Proc., 1281.6, 1282.) The Graham court also approved the result reached in Arrieta v. Paine, Webber, Jackson & Curtis, Inc. (1976) 59 Cal.3d 222 [and other cases cited in Graham, supra, at pages 822-823] holding that "potential unfairness from the non-neutral nature of an arbitrator is not a ground for vacation of the arbitration award."

In fact, California courts have consistently applied the rule that the existence of an attorney-client relationship between a "partisan" arbitrator and a disputant is not, of itself, a basis for disqualification of the arbitrator-designate unless the arbitration agreement otherwise provides.

"Nothing in the Arbitration Act prohibits parties to a contract of arbitration from selecting an arbitrator who, by reason of relationship to a party or similar factor, can be expected to adopt something other than a neutral stance in determining disputes." (Dinong v. Superior Court (1981) 120 Cal.App. 3d 300, 303 [174 Cal. Rptr. 590].)

Accordingly, if the arbitration contract creates in the disputants an unqualified right to nominate an arbitrator, a past or continuing attorney-client relationship between an arbitrator-designate and a party will not be grounds for disqualification. (See Hines v. Anchor Motor Freight (1976) 424 U.S. 544, 571; Johnston v. Security Ins. Co. (1970) 6 Cal.App.3d 839 [86 Cal.Rptr. 133]; Obispo Bay Properties, Inc. v. Pacific Gas & Electric Co. (1972) 28 Cal.App.3d 556 [104 Cal.Rptr. 733]; Good v. Kaiser Foundation Hospital (1984) 152 Cal.App.3d 819; Tipton v. Systron Donner Corp. (1979) 99 Cal.App.3d 501, 505 [160 Cal. Rptr. 303]; and Code Civ. Proc., 1282, 1286.2.) In Graham, the court expressly stated its unwillingness to prohibit the selection of an "interested" arbitrator by application of a per se rule. The court reasoned as follows:

"... we do not intend to limit the power of contracting parties to designate arbitrators who, with the knowledge of the parties, may have an interest in the dispute or who sustain some relationship to a party which would otherwise disqualify the arbitrator from serving."

Thus, the role of a party designated arbitrator in partisan tripartite arbitration is vastly different from that of a judge, whose constitutional mandate is one of fairness and impartiality.

C. Reconciling the Role as Attorney and the Role of a Party Designated Arbitrator in Partisan Arbitration.

There appears to be no inherent inconsistency between the role of attorney and the role of party designated arbitrator. Rule 5-102(B) of the Rules of Professional Conduct, which proscribes the representation of conflicting interests without the written consent of all parties concerned, is inapplicable to this situation. The attorney's role requires, and the arbitrator's role permits, advocacy of the client's interests.

However, counsel contemplating assuming both roles should keep in mind that, while so acting, the attorney is still bound by professional standards. Prior to accepting the role of arbitrator, the attorney should discuss with the client the potential difficulties which may arise by virtue of his or her dual role, in order to avoid misunderstandings or problems once the role of arbitrator has been accepted. For example, it may be necessary for the attorney to be an adverse witness in a collateral proceeding challenging the arbitration award.3

CONCLUSION

An attorney who represents the client in other legal matters may accept that client's designation as arbitrator in a contractual partisan arbitration. However, because the attorney who acts in such a dual role is still bound by the professional standards of an attorney, the attorney should take care to discuss with the client any potential problems which may result from acting in both roles prior to accepting such a designation.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

1 The Committee does not opine on situations in which the law firm represented the client in the specific matter prior to arbitration or presently is counsel for the client in the arbitration.

2 Typically, partisan tripartite arbitration poses two party-designated arbitrators tempered by a "neutral" umpire.

3 See rule 4-101 of the Rules of Professional Conduct.