Could a lawyer arbitrate a workers’ compensation dispute involving a current or former insurer client?

Short answer Opinion 2003-01 barred service when the lawyer currently represented an insurer party, even with disclosure and consent. It permitted service where the only relationship was former representation, after full disclosure and all parties’ consent.
Bar
VTBAR
Issued
2003

Apply this to your situation

This page answers the general question as of 2003. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2003
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The committee considered a single-arbitrator workers’ compensation proceeding that would allocate payment responsibility between insurance carriers. The prospective arbitrator either currently represented one or more carrier parties or had represented them in the past.

Following Opinion 2001-06, the committee said a lawyer who currently represented a party could not serve, even if everyone consented. It relied on Vermont Rule 8.4(d), the lawyer’s continuing loyalty and financial interest in the current client, and Workers’ Compensation Rule 8.2111’s requirement that the arbitrator be unbiased and free of an interest in the claim or outcome. Representing more than one carrier did not remove that concern.

If the lawyer’s representation of the carrier had ended and there was no current client relationship with a party, the committee permitted service after full disclosure and all parties’ consent. It distinguished the former relationship from the current financial and loyalty tie on which the prohibition rested.

In practice

For the workers’ compensation arbitration described, the opinion distinguishes an ongoing insurer client from a former client. Current representation barred the lawyer from serving as arbitrator; concluded representation permitted service after full disclosure and consent from all parties.

Common questions

Q: Could all parties consent to an arbitrator who currently represented a carrier?

A: No. The committee barred the service despite disclosure and consent.

Q: Did representing more than one insurer party change that result?

A: No. The committee said the lawyer still could have a personal stake or financial advantage.

Q: Could a former insurer lawyer serve?

A: Yes, if the lawyer had no current relationship with a party, made full disclosure, and obtained all parties’ consent.

Background and rules framework

The opinion applied Vermont Rule 8.4(d), discussed Rules 1.12(b), 1.12(d), and 1.9, and cited Workers’ Compensation Rule 8.2111. It followed Vermont Opinion 2001-06 and distinguished contrary authority.

Citations and references

Vermont Rules of Professional Conduct:

  • Rules 8.4(d), 1.12(b), 1.12(d), and 1.9.

Workers’ compensation rule:

  • Vermont Department of Labor and Industry Workers’ Compensation Rule 8.2111.

Other opinions and case cited:

  • Vermont Advisory Opinion 2001-06; Pennsylvania Bar Association Opinion 96-180; Close v. Motorists Mut. Ins. Co., 486 N.E.2d 1275, 1278-79 (Oh. App. 1985).

See also

Source

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