Can a lawyer who represents a party in a public-sector arbitration also sit on the arbitration panel as that party's nonneutral member?

Plain-English summary

The committee was asked whether the lawyer for one of the parties to a public-employment dispute under Section 209 of the Civil Service Law may serve as a nonneutral member of the public arbitration panel convened to resolve it.

The committee found EC 5-20 to be the only relevant provision. EC 5-20 addressed a lawyer asked to serve as an impartial arbitrator or mediator, permitting it after disclosure of present or former client relationships and directing that the lawyer not thereafter represent any party to the dispute. The committee read the word "impartial" as deliberate: the law recognizes different kinds of arbitrators, and neutral arbitrators are required to be impartial (citing CPLR 7511(b)(1)(ii)).

The committee then described the statutory structure. A Section 209 public arbitration panel has three members, one appointed by the public employer, one by the employee organization, and one public (neutral) member appointed jointly; if a party fails to designate its member, PERB designates one "associated in interest" with the party "he is to represent" (Civil Service Law section 209(4)(c)(i), (ii)). Only the public member must be neutral. Labor and management are each given a representative who may properly be expected to support the interests of the party that selected him. Because a lawyer serving to represent one disputant's interests is not "impartial" within EC 5-20, and the Code is otherwise silent, the committee concluded the proposed service would not be unethical.

Currency note

This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (service as a third-party neutral is now addressed by Rule 2.4). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer represent a party and also sit on that party's side of an arbitration panel?

A: Under this opinion, yes, on a public arbitration panel under Civil Service Law section 209. The committee held that a panel member chosen to represent a party's interests is not an "impartial" arbitrator, so EC 5-20's restriction did not apply.

Q: What does EC 5-20 actually restrict?

A: The committee read EC 5-20 to govern only service as an impartial arbitrator or mediator, requiring disclosure of client relationships and barring later representation of a party. A partisan, party-appointed panel member falls outside it.

Background and rules framework

The opinion turns on EC 5-20 of the then-applicable New York Code of Professional Responsibility, read against the structure of Civil Service Law section 209, which builds a tripartite panel with two partisan members and one neutral. The current Model Rule analogue is Rule 2.4 (lawyer serving as third-party neutral), which by its terms applies to a lawyer serving as an arbitrator, mediator, or other neutral, not to a partisan party representative.

Citations and references

Rules of Professional Conduct:

• MR 2.4 (lawyer serving as third-party neutral)
• NY EC 5-20

Statutes:

• N.Y. Civil Service Law section 209(4)(c)(i), (ii) (public arbitration panel composition)
• CPLR 7511(b)(1)(ii) (neutral arbitrator impartiality)

See also

• NY State Bar Op. 1178: A lawyer-mediator serving as a third-party neutral
• NY State Bar Op. 900: Assistant county attorney as mediator in a permanency proceeding
• NY State Bar Op. 878: Lawyers serving as mediators

Source

• Landing page: https://nysba.org/opinion-448/