Menu
Log in
Forgot password

Association for Conflict Resolution - Greater New York Chapter↑

Search
Log in
Forgot password

Party Switching Counsel

Sunday, January 12, 2025 10:00 AM | Elise Brancheau (Administrator)


How should an arbitrator handle a situation where a party, during the course of an arbitration, keeps switching counsel when it appears likely, to the arbitrator at least, that this is being done to delay the schedule?

What are your thoughts?

Comments

  • Sunday, January 12, 2025 10:02 PM | Steven Skulnik
    Don't change the procedural timetable. Voilà!
    Link  •  Reply
    • Monday, January 13, 2025 12:09 PM | Zak Taylor
      It depends on the point in the arbitration timeline. The Arbitrator must be aware that denying a request for continuance can lead to vacating the award. If it happens early in the arbitration, keep the hearing date if possible. If it happens on the eve of the hearing, grant the continuance.
      Link  •  Reply
    • Monday, January 13, 2025 2:32 PM | Peter Sherwood
      Steve,
      Wish there were such a hard and fast rule available. Upon the first change, I would be amenable to reasonable extensions upon a showing of good reason. As to the length of any extensions, I would take into account arguments made by an opponent. Upon a second change , require that the application be recorded. Allow a short extension of the schedule only upon showing of exigent circumstances. Advise counsel that no further rescheduling will be permitted and require counsel to so inform the client in writing.
      Link  •  Reply
  • Monday, January 13, 2025 10:26 AM | Anonymous
    This happened to me only once when a party on two separate occasions switched counsel on the first day each hearing was scheduled. I allowed a brief adjournment both times with the admonition that a third request would be disfavored. The case then settled.
    Link  •  Reply
  • Monday, January 13, 2025 10:30 AM | Anonymous
    Deny the request for delay.
    Link  •  Reply
  • Monday, January 13, 2025 10:37 AM | Kyle-Beth Hilfer
    Undoubtedly, counsel for the other side will object and lay the groundwork for denying requests for changing the timetable.
    Link  •  Reply
  • Monday, January 13, 2025 10:50 AM | Anonymous
    Alternatively, grant the request to change counsel only on the condition that there be no further requests for delay.
    Link  •  Reply
  • Monday, January 13, 2025 11:25 AM | Anonymous
    If any party retains new or additional counsel during the arbitration, the parties must immediately notify the Arbitrator and the AAA for them to conduct a conflict check. In addition, the parties must first provide counsel with copies of the case calendar, all prior orders, rulings, and decisions, and obtain counsel’s commitment to comply with the dates and procedures in those orders as a condition of accepting the engagement. The Arbitrator will not delay, postpone, or continue the hearing or any other deadline in the case due to changes in or additions to counsel.
    Link  •  Reply
    • Monday, January 13, 2025 12:02 PM | Thomas C. Watts III
      In the face of the obligation to be fair and efficient is the obligation to remain neutral and unbiased. Absent some factual basis or without the opportunity to explain the change of attorneys, the arbitrator runs the risk of being tagged as biased. In such an instance there ought to be a status hearing which includes both an opportunity to explain and appropriate orders to prevent future such events . TCW
      Link  •  Reply
  • Monday, January 13, 2025 1:08 PM | Peter Rundle
    Anticipate this possible issue and deal with it in PO #1 as follows:
    "Counsel shall promptly, following receipt of this Scheduling & Procedural Order No. 1 (“Order No. 1”), notify their clients and anticipated witnesses, in writing, of the dates on which the evidentiary hearing in this matter is scheduled to avoid unexpected scheduling conflicts. Absent evidence of compliance with this directive, it is very unlikely that the evidentiary hearing will be rescheduled because of client or witness scheduling conflicts."

    "If the Parties engage new counsel, they must be provided with copies of all Scheduling and Procedural Orders and be prepared to comply with the dates set forth in those Orders so this proceeding is not delayed or otherwise disrupted."
    Link  •  Reply
    • Monday, January 13, 2025 2:08 PM | Judge Christine O. C. Miller (Ret.)
      An arbitrator should always afford an opportunity to opposing counsel before acting on a scheduling motion, absent a representation that the motion is unopposed. For example, what happens if the opposing party has no objection and the consequence of granting the motion will be to frustrate the arbitrator’s schedule? In that case, the arbitrator would be obligated to canvas counsel in the arbitrator’s second case to see if an adjustment could be made. If close to the scheduled date of the second arbitration , I would deny, recording that it would be prejudicial and disruptive to reschedule the second case. If early on, it seems to me that an adjustment could be made. If the opposing party objects, I would allow on a one-time basis if early in the arbitration and to rule that no further extensions for the same reason absent a showing of good cause would be allowed. If later, I agree with the comment that successor counsel would have to pledge to the new schedule. However, if the movant were discharging counsel, that would not bind successor counsel. The better course of action is to note the history of substitutions and grant on the condition of no further substitutions unless compelling cause is shown, such as grave illness or death of lead counsel or the second chair.
      Link  •  Reply
  • Monday, January 13, 2025 2:08 PM | Anonymous
    the question seems to imply that with each switch of counsel, an extension of the case schedule occurs. Such extensions should stop after the second extension.
    Link  •  Reply
  • Monday, January 13, 2025 2:11 PM | Les Werlin
    If the arbitration is governed by California law, arbitrators should note that: (a) a party to an arbitration has the right to be represented by counsel at any arbitration proceeding (CA Code Civ. Proc., § 1282.4); and (b) a court will vacate an arbitration award if the rights of a party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown. (CA Code Civ. Proc., § 1286.2, subd. (e)).

    In addition, under California law, a client has an absolute right to change counsel at any stage of the proceeding. Even assuming that right exists in arbitration proceedings, there is no absolute right to delay the merits hearing or to extend dates or deadlines previously set by the arbitrator simply by changing counsel. See Vann v. Shilleh, (1975) 54 Cal.App.3d 192 (“It cannot be held that litigants in all cases may demand a continuance by engaging counsel just prior to a trial date, where there is no showing of any necessity for any change of counsel, but a necessary substitution of counsel just prior to trial may justify the granting of a continuance, in some cases.”)

    If the arbitrator detects an emerging pattern of change and delay, an order can issue that any further change of counsel by that party will not result in a delay or extension (or except on a showing of unforeseeable good cause). If the arbitrator determines a party is changing counsel to delay, in my view the arbitrator can deny a requested continuance or extension but should consider explaining the basis for the order. See SWAB Fin., LLC v. E*Trade Sec., LLC, (2007) 150 Cal.App.4th 1181, 1198 ) (“when, as here, an arbitrator exercises discretion in denying a continuance request, there are two issues to be resolved in vacatur proceedings. First, the trial court must determine whether the arbitrator abused his or her discretion by refusing to postpone the hearing upon sufficient cause being shown. Second, if there was an abuse of discretion, the trial court must determine whether the moving party suffered substantial prejudice as a result.”).
    Link  •  Reply
  • Monday, January 13, 2025 2:42 PM | Robbie MacPherson
    The advice I was given early in my career was that every question from a client should be answered with the following preface
    "If I understand you correctly, and if what you have told me is true, it depends."
    Link  •  Reply
  • Monday, January 13, 2025 2:47 PM | Judge Andrew Peck (ret.)
    This comes up in litigation as well as arbitration. While one is more liberal as an arbitrator, that doesn’t mean numerous postponements are appropriate. Have a hearing to make a record, see what the reason is and the need for the extension, and see what the other side’s view is. But at some point it is appropriate to say, there will be no further extensions.
    Link  •  Reply
  • Monday, January 13, 2025 2:50 PM | Jill Landsberg
    Parties are entitled to the counsel of their choice; they are not entitled to delay the hearing or the schedule. I would inform the party that any further changes in counsel will not be the basis for delaying the hearing or the schedule absent good cause shown. And simply changing counsel will not constitute “ good cause”.
    Link  •  Reply
  • Monday, January 13, 2025 3:22 PM | D. Andrew Byrne, Esq.
    The rules permit parties to be self-represented or by another representative. Upon the first substitution, I would grant a short stay to permit a party to locate substitute counsel after first attempting to obtain the consent of the opposing party. Once I have granted one short stay, I would require a hearing and a showing of good cause for any further delays.
    Link  •  Reply
  • Monday, January 13, 2025 3:51 PM | Mark F. Brancato
    First and foremost, an arbitrator must respect a party's right to select the counsel of his/her choice and must give the party considerable leeway to replace counsel when he/she believes that a change is needed. That right, however, cannot be abused. However, the interests in prompt, cost-effective arbitration are also compelling, and, in the situation described in the hypothetical, those interests should ultimately take precedence if the arbitrator has reasonable cause to conclude that the party is, indeed, repetitively changing counsel simply to delay the arbitration. The arbitrator should not act without first consulting with the AAA for guidance and such direction as the AAA may provide.
    Link  •  Reply
  • Monday, January 13, 2025 4:12 PM | Judge Susan G. Braden ( Ret)
    Excellent issue for discussion with some very thoughtful comments.
    When I first went on the federal bench, I found out the Department of Justice lawyers used this ploy to delay long scheduled trials. After denying 2 such requests, their behavior changed.
    In an arbitration, my sense is the Arbitrator should exercise a bit more restraint and ascertain the basis for counsel change on the record- reschedule with a new, but reasonable final hearing date- with a gentle warning that this professional courtesy will be extended only once. This approach protects the AAA final award and is fair to all concerned.
    Link  •  Reply
  • Monday, January 13, 2025 4:40 PM | Jaime Ramon
    I think it depends on the status of the case and where it is with respect to the final hearing. If it becomes apparent that the purpose of switching counsel is to delay the proceeding, I might grant the request but I would NOT change the scheduling order, putting the onus on the movant and new counsel to proceed with the case, as scheduled.
    Link  •  Reply
  • Monday, January 13, 2025 11:00 PM | Patricia Beaujean Lehtola
    If this has happened more than once, and the hearing is delayed, the extension should be granted but the party should be advised that no further extensions will be granted.
    Link  •  Reply
  • Tuesday, January 14, 2025 11:53 AM | Anonymous
    If a party's counsel has resigned, I would likely agree to one postponement for new counsel. The introduction of additional counsel would trouble me more. Of course, it does depend on the circumstances. If the hearing is six months from now and new counsel can be accommodated by moving it a few weeks, I would not have a problem. But if the hearing is only a few weeks away, I would need very good reasons to change the date. Peter Rundle's suggestion is a good one.
    Link  •  Reply
  • Tuesday, January 14, 2025 1:37 PM | Erika Deutsch Rotbart
    I would advise the parties that the timeline and dates set are firm absent good cause shown. It is important to try and keep the deadlines and dates to ensure the efficiency of the process.
    Link  •  Reply
  • Tuesday, January 14, 2025 2:04 PM | Cindy Ettingoff
    Consider accessing costs for delay to the party who continues to switch counsel.
    Link  •  Reply
  • Tuesday, January 14, 2025 7:21 PM | George Lobman
    After the first time I would warn them that it is delaying the matter. But little or no recourse I would imagine when a respondent is trying to delay anyway. Maybe consider a cancellation of a next hearing and deferring costs to the party initiating!
    Link  •  Reply
  • Thursday, January 16, 2025 1:52 PM | Thomas Hanrahan
    I'm in the wise Mr. Sherwood's camp on this. If the parties agree, which is more likely early in the case, then it's easy. if they don't, which is more likely later in the case, then I would probably allow a week or so to "get up to speed, but not change the Hearing date.
    Link  •  Reply
    • Monday, January 20, 2025 2:42 PM | Dan Deuprey
      First, it is obviously important to be fairly certain that the substitutions of counsel are occurring solely for purposes of delay.

      If the arbitrator is really convinced that this is going on, the following options occur (off the top of my head, not from research or AI):

      1. Make it clear when the evidentiary hearing is rescheduled that it will proceed on the new date no matter who the attorneys may be, and emphasizing that a party considering changing counsel should advise any potential new counsel that the dates will not change solely due to a change in representation;

      2. Imposing monetary sanctions for the benefit of opposing parties, where the delay can be linked to prejudice such as increased attorney fees and costs;

      3. If the offending party is that side that demanded arbitration, a “nuclear option” (to be used only in extreme circumstances) available to the Arbitrator is to order dismissal for failure to adhere to the Arbitrator’s orders.
      Link  •  Reply
  • Sunday, January 26, 2025 1:06 PM | Michael Lampert
    LCIA doesn't allow switching of counsel w/o Tribunal consent & lays out factors to be weighed:
    Section 18.3 Following the Arbitral Tribunal’s formation, any intended change or addition by a party to its authorised representatives shall be notified promptly in writing to all other parties, the Arbitral Tribunal, the tribunal secretary (if any) and the Registrar; and any such intended change or addition shall only take effect in the arbitration subject to the approval of the Arbitral Tribunal.

    Section 18.4 The Arbitral Tribunal may withhold approval of any intended change or addition to a party’s authorised representatives where such change or addition could compromise the composition of the Arbitral Tribunal or the finality of any award (on the grounds of possible conflict of interest or other like impediment). In deciding whether to grant or withhold such approval, the Arbitral Tribunal shall have regard to the circumstances, including: the general principle that a party may be represented by an authorised representative chosen by that party, the stage which the arbitration has reached, the efficiency resulting from maintaining the composition of the Arbitral Tribunal (as constituted throughout the arbitration) and any likely wasted costs or loss of time resulting from such change or addition.
    Link  •  Reply
  • Saturday, February 01, 2025 12:08 PM | Lori B Sanford
    I make sure to put in the preliminary hearing scheduling order that the dates are firm dates and won't be changed absent good cause which they have to prove. Switching counsel just for delay is not good cause. I have had situations where counsel was switched for real reasons and so I allowed some flexibility.
    Link  •  Reply
  • Sunday, February 02, 2025 3:42 PM | George Wood
    As soon as it appears to the arbitrator that switching counsel is to delay the arbitrator should allow one substation and caution there will be no more and set future firm dates
    Link  •  
    Author
    Comment
     
  • Saturday, February 15, 2025 11:07 AM | Richard C Levin
    Obviously, it is wrong and should not be allowed if for delay or an improper purpose. Also, if the purpose is to conflict out the tribunal should be questioned.
    Link  •  Reply
Association for Conflict Resolution - Greater New York Chapter

© ACR-GNY

Contact Us

Email us at questions@acrgny.org

ACR-GNY's mission and programming are generously sponsored by:

ADR Notable: Dispute Resolution Management Made Easy 

Discounts on ADR Notable platform available for ACR-GNY members!

Powered by Wild Apricot Membership Software