Is an Ohio lawyer who serves as a labor arbitrator subject to lawyer discipline for conduct in the arbitration?

Plain-English summary

The Board addressed whether a person who acts as an arbitrator in labor disputes, and who is also licensed to practice law in Ohio, is subject to discipline under Ohio's Code of Professional Responsibility for unethical conduct while acting as an arbitrator. It noted that arbitrators who are members of the National Academy of Arbitrators, the American Arbitration Association, or the Federal Mediation and Conciliation Service are subject to the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes.

The Board reasoned that a lawyer is subject to professional discipline for conduct engaged in outside the lawyer's role as a lawyer, drawing on Wolfram's treatise, where that conduct suggests the lawyer is incapable of practicing law honestly and competently. It pointed to DR 1-102(A)(6), which prohibits a lawyer from engaging in conduct that adversely reflects on fitness to practice law. The Board concluded that a lawyer who serves as an arbitrator in labor disputes remains amenable to the Code of Professional Responsibility adopted by the Ohio Supreme Court, even when the arbitrator is also subject to the arbitrators' code.

Currency note

This opinion issued in 1990 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Does a lawyer-arbitrator's misconduct in an arbitration expose the lawyer to bar discipline?

A: Under this opinion, yes. The Board concluded that conduct as an arbitrator that adversely reflects on fitness to practice falls within DR 1-102(A)(6).

Q: Does being governed by the labor arbitrators' code take the lawyer outside the Code of Professional Responsibility?

A: No. The Board concluded the lawyer remains subject to the Ohio Code of Professional Responsibility even when also bound by the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes.

Background and rules framework

The opinion interprets the former Code of Professional Responsibility DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law), applied to conduct a lawyer engages in while serving in a non-lawyer role as a labor arbitrator.

Citations and references

Rules of Professional Responsibility (Ohio, former):

• DR 1-102(A)(6), conduct that adversely reflects on a lawyer's fitness to practice law

Other authorities cited:

• Wolfram, Modern Legal Ethics 97 (West, 1986), discipline for conduct outside the lawyer's role
• Code of Professional Responsibility for Arbitrators of Labor-Management Disputes

See also

• Ohio BPC Op. 1990-005: Judge Suggesting Programs to a Local Bar Association
• Ohio BPC Op. 1990-001: Duty to Report Another Lawyer's Misconduct and the Privilege Exception

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-015.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 90-15
Issued August 17, 1990

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A lawyer acting as an arbitrator in a labor dispute is subject to the Code of Professional Responsibility even though he or she may also be subject to the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes.

OPINION: We have before us your request on whether a person acting as an arbitrator in labor disputes, who is also licensed to practice law in Ohio, is subject to discipline under Ohio's Code of Professional Responsibility for unethical conduct while acting as an arbitrator in those labor disputes. Arbitrators who are members of the National Academy of Arbitrators, American Arbitration Association or the Federal Mediation and Conciliation Service are subject to the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes.

A lawyer is subject to professional discipline for conduct that the lawyer engaged in outside his or her role as a lawyer. Wolfram, Modern Legal Ethics 97 (West, 1986). Conduct, in this case as an arbitrator, that suggests the lawyer is incapable of practicing law honestly and competently must be examined. Id. Moreover, Disciplinary Rule 1-102 (A) (6) prohibits a lawyer from engaging in conduct that adversely reflects on his or her fitness to practice law. Therefore, an arbitrator in labor disputes, who is a lawyer admitted in Ohio, is subject to the Code of Professional Responsibility as adopted by the Ohio Supreme Court.

In conclusion, it is our opinion and you are so advised that a lawyer who serves as an arbitrator in labor disputes is amenable to the Code of Professional Responsibility even when the arbitrator is subject to the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes.

This is an informal, non-binding advisory opinion limited to the questions presented and based upon the Code of Professional Responsibility.