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Party or Counsel Serving as a Reference for an Arbitrator

Friday, January 24, 2025 10:54 AM | Anonymous

How to Ask Someone to Be a Reference: Expert Tips and Strategies

During a pending arbitration matter, is it acceptable for the arbitrator overseeing the matter to ask one of the parties or counsel to serve as a reference for acceptance into an organization or institution (e.g. bar association or ADR provider membership)? If yes, what type of disclosures should the arbitrator, party or counsel make? If no, when is it acceptable, if at all, for an arbitrator to make such a request from one of the parties or counsel to a previous arbitration matter that he/she oversaw (i.e. months, one year, etc.)?

What are your thoughts?

Comments

  • Sunday, January 26, 2025 11:37 AM | Chip Mitchell
    Absolutely not under any circumstance. Reframe the question: while overseeing a matter, is it okay for the arbitrator to ask one of the parties or their counsel for a favor? The answer should be obvious.
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    • Sunday, January 26, 2025 11:55 AM | Marie E. Lihotz
      Well said Chip. Some may think they can compartmentalize the arbitral decision from this type of request— rationalizing they are not influencing counsel’s submission, but such a request tears away neutrality, which is the essence of an arbitrator’s role. Listing lawyers who represented clients in arbitration matters you concluded is very different from seeking one side’s recommendation. Making the latter request, even after the hearing is concluded, sparks the appearance of possible bias.
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    • Sunday, January 26, 2025 7:21 PM | Anonymous
      Absolutely not unless counsel has got the ok from opposing counsel before he asks the arbitrator. Bill rapson
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  • Sunday, January 26, 2025 11:43 AM | Cedric Chao
    I believe the arbitrator should not ask counsel for a reference while the arbitration is pending. Once the arbitration is completed and the time for arbitrator corrections has passed and the arbitrator has no additional responsibilities, then it might be acceptable. However, if the matter was hotly litigated or the award was controversial, it still might be preferable in the exercise of discretion for the arbitrator to refrain from seeking a reference. The perception of impartiality is more important than any reference.
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  • Sunday, January 26, 2025 11:47 AM | James Elegante
    The question is raised: Why is the arbitrator so bereft of sources for a reference that the arbitrator must turn to the parties or counsel in a former or pending arbitration for a reference? In my view, it is never appropriate to seek a reference or any benefit from a party or counsel in a pending or past arbitration so as to avoid even the appearance of impropriety.
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    • Sunday, January 26, 2025 11:55 AM | Lisa Renee Pomerantz
      I agree with your concerns. The issue is that sometimes arbitral institutions or counsel for parties request references from counsel or parties in prior cases where the arbitrator or mediator has served as a neutral. One way to preserve neutrality is to pose the request to both sides.
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      • Sunday, January 26, 2025 12:03 PM | R Hamilton
        Shouldn’t the organizations that ask this type of reference rethink that request to avoid such a scenario to begin with. Organizations can simply look at the number of matters handled over the length of time to help evaluate.
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    • Tuesday, January 28, 2025 4:15 PM | Kathleen Paustian
      I agree with James Elegante's comment. Such a request from an arbitrator is highly questionable from an ethical standpoint.
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  • Sunday, January 26, 2025 11:49 AM | Sidney Seligman
    The answer should be "NO." The mere appearance of partiality is a violation of ethics. Canon 1.C. of the Commercial Arbitration Code of Ethics: After accepting appointment and while serving as an arbitrator, a person should avoid entering into any business, professional, or personal relationship, or acquiring any financial or personal interest, which is likely to affect impartiality or which might reasonably create the appearance of partiality. Article C.3. of the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes: An arbitrator shall not engage in conduct that would compromise or appear to compromise the arbitrator’s impartiality.
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    • Sunday, January 26, 2025 5:59 PM | David W Slaughter
      Agree on the “never ask a party or counsel for favors” standard. I have arbitrated disputes in which one of the parties was represented by an attorney who is also a personal friend. Proper disclosures were offered and objections waived by all - but even then I hesitated to engage in even social exchanges with my friend to avoid the appearance of bias. And I would have never asked for a favor relating to or arising from my role as an arbitrator.
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  • Sunday, January 26, 2025 11:53 AM | Nasri H Barakat
    This would be the kind of request I would avoid during the pendency on an arbitration. It is the appearance of impropriety that is at issue here. Attorneys have asked me over the years to provide a reference for them joining an arbitration society or another law firm and I have done that but never during an arbitration in progress.
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  • Sunday, January 26, 2025 11:55 AM | David Lichter
    As to the first question, absolutely not. The appearance of partiality is too great and any disclosures may blow up the pending arbitration. I think the second question is more nuanced, although I think we end up with the same result. While asking a party from a prior arbitration for a reference (and then, only from the losing side!) is not as patently offensive as the first example, it is best avoided, By asking for the reference, you will then need to disclose that request if you ever see that attorney/law firm again in an arbitration. This will likely bar one from ever serving again as an arbitrator for that firm/person.
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  • Sunday, January 26, 2025 11:57 AM | Anthony DiLeo
    I don’t believe that's permissible.

    Puts counsel in a position that they must provide a positive reply. Impossible.

    If EVER it should only be after a case is over and if all counsel are asked jointly. But even then, rarely.

    T
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  • Sunday, January 26, 2025 11:58 AM | Tyrone Holt
    No, under no circumstances should the arbitrator serving in a pending arbitration matter, ask one of the parties or counsel to serve as a reference for acceptance into an organization or institution (e.g. bar association or ADR provider membership). This prohibition should also include anyone in the law firms of the counsel for the parties in a pending arbitration proceeding. This prohibition should temporally extend through the expiration of the time period for seeking vacatur or confirmation of a recently issued award.
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  • Sunday, January 26, 2025 12:06 PM | Nancy Lesser
    I have a strict policy of never asking for, or providing, references of counsel who have appeared before me. That is so whether the matter is pending or concluded.
    You never know when that same counsel will appear before you in the future, and the appearance of a quid pro quo is one I studiously avoid. And as another poster mentioned, we do get requests from arbitral institutions for names of counsel they can provide as references. I have likewise routinely declined to provide those. I tell the case manager, you have access to the prior cases and the counsel who appeared before me. I have no objection to your providing any number of those names, but I don’t want to be the intermediary or know who you are providing as references.
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    • Sunday, January 26, 2025 1:12 PM | Michael Lampert
      Nancy - would you likewise not ask for a reference from someone who appeared before you, had a great experience, retired from the active practice of law and now regularly served as an arbitrator and mediator? Hard to see the risk from such a hypothetical; (or not) person.
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  • Sunday, January 26, 2025 12:08 PM | Robert Flanders
    Asking one party for a favor such as this is unacceptable. Creates the wrong impression of seeking favor from a party to a disputed litigation who will be under every incentive to respond favorably to such a reques.
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  • Sunday, January 26, 2025 12:18 PM | Mark H. Alcott
    Never, under either scenario. While the matter is pending, the conflict inherent, and such a request is obvious and blatant, and can’t be cured by disclosure or waiver. Even after the fact, such a request creates at least the appearance of impropriety by suggesting that the arbitrator was attempting to curry favor while the case was pending. Of course, the arbitrator should always conduct himself/herself with competence and professionalism, in which case counsel or the parties might give such a recommendation if requested by a colleague or an arbitral institution. But the arbitrator himself/herself, must never ask. On the other hand, it is acceptable for an arbitrator serving on a panel of three to ask one of the co-arbitrators for a reference for entry into a professional organization, but only after the case as well over.
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  • Sunday, January 26, 2025 12:21 PM | Steven Skulnik
    No.
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  • Sunday, January 26, 2025 12:37 PM | Richard Ziegler
    I agree with the resoundingly unanimous comments so far and add to the mix: (1) Calif decision vacating award where arbitrator listed counsel (and respondent) as a reference on his decade-old website resume: Mt. Holyoke Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP, 219 Cal.App.4th 1299 (Cal. Ct. App. 2013); and (2) when directly furnishing references is unavoidable, I apply solely objective factors by identifying (without asking) all counsel who have appeared before me in completed cases in a recent time period (and I also report on my standard general disclosures that I follow that practice and so am not identifying those referees).
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  • Sunday, January 26, 2025 12:50 PM | Deanne Wilson
    Why put yourself in a position in which someone in the arb community. who knows nothing about the safeguards and disclosures you may have put into place jumps to the conclusion that there was bias or influence intended? Even the existence of the request is questionable. We have only one reputation; it is sacred..
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  • Sunday, January 26, 2025 12:56 PM | David E. Robbins
    "If no, when is it acceptable, if at all, for an arbitrator to make such a request from one of the parties or counsel to a previous arbitration matter that he/she oversaw (i.e. months, one year, etc.)?" Call me a purist, but I don't believe it ever passes the "smell test" to seek a favor from a current or former party who appeared before you. If you have a good, hard-earned reputation, you should be able to go beyond the confines of such an arbitration to seek references.
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  • Sunday, January 26, 2025 1:03 PM | Frank Kaplan
    No in pending matters. Not clear on past matters, but if yes, detailed disclosures required.
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  • Sunday, January 26, 2025 1:04 PM | Henry P. Wall
    I would say never during the course of an ongoing arbitration. Aside from the awkward nature of the request, the request would create the nature of an improriety and potential favoritism.

    After the case is complete, I would not make it a practice to request such a reference, even though it may be permissable.
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  • Sunday, January 26, 2025 1:15 PM | Louis B. Buchman
    Definitely not acceptable during a pending arbitration matter, as compromising independence and neutrality. Possible after a decent interval after the end of a previous matter, but not less than one year.
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  • Sunday, January 26, 2025 1:35 PM | Mark Voigtmann
    Hard no on anything pending. Permissible after an award plus a long grace period, but disclosing this reference down the line should be near-perpetual.
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  • Sunday, January 26, 2025 1:36 PM | Wm. Frank Carroll
    Never when an arbitration is pending. I do not believe that even after conclusion it would be proper ever to ask a party for a recommendation. I do not see a problem in asking an attorney for a recommendation if it is at least one year since the conclusion of the arbitration proceeding.
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  • Sunday, January 26, 2025 1:42 PM | Peter Rundle
    No; not ever.
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  • Sunday, January 26, 2025 1:47 PM | Carole Crosby Esq.
    Never acceptable.
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  • Sunday, January 26, 2025 1:50 PM | Mark P. Henriques
    I don't believe it would be appropriate to ask during a pending arbitration matter. I think it is fine to ask after the matter has concluded.
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  • Sunday, January 26, 2025 2:05 PM | John Allgood
    No and No. There is a risk of unilateral communication between a party and the arbitrator which is a violation of the AAA rules. in addition it is questionable whether your inquiry is a violation of the confidentiality rules as well. There is also the consequence of having to disclose the inquiry on future conflicts checks and the implication of lack of impartiality..
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  • Sunday, January 26, 2025 2:15 PM | Robert Young
    I think it is never acceptable for an arbitrator to solicit a reference from any party/counsel in a pending arbitration. I would never solicit a reference from a counsel who had previously appeared in front of me, but I am less adamant about this than I am about doing so during the pendency of a matter. If such a solicitation is made, I think disclosures are warranted.
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  • Sunday, January 26, 2025 2:16 PM | Leland Shruine
    Completely unacceptable and unprofessional.
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  • Sunday, January 26, 2025 2:17 PM | Michael Brown
    Yes, in the context of an existing Arbitration for a party to solicit an endorsement to use. I think, however, if there is no existing matter for either party, I do not believe there is a problem—so long as in the future the arbitrators are never active in an arbitration together in any capacity.
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  • Sunday, January 26, 2025 2:21 PM | Melissa Hubbard
    Having recently reviewed AAA's code of ethics, it should be clear to all that this is not acceptable during an arbitration. I do not think it is acceptable afterwards either in the spirit of complete neutrality. That being said, I do know that attorneys do often ask other colleagues if they have knowledge about prospective arbitrators, so indirectly, if you have done a good job in a case, you are likely to get good references.
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  • Sunday, January 26, 2025 2:22 PM | Mary Comeau
    Interesting questions. I would think it is never appropriate for ask such a thing during an appointment. The only time it would be appropriate is after you have issued the final award, including dealing with any cost issues and have no further jurisdiction in the matter.
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  • Sunday, January 26, 2025 2:26 PM | Stu Widman
    To the Q you posed, without citing Codes or guidelines, "NO". I certainly feel that way when the request is during a matter, but also have big concerns if the request is after a matter has concluded. Either scenario can create: (i) pressure on the lawyer to say good things (the requesting arbitrator may find out) or (ii) pressure on the arbitrator to give the replying lawyer good results in the pending (or future) cases.

    But here's how the Q might be framed, and the process slightly changed, to get to (a possible) "YES": instead of the arbitrator asking the lawyer DIRECTLY, have the arbitrator give (at least three?) lawyers' names to the organization or ADR provider, and have the org/provider ask the lawyer(s). That INDIRECT approach MAY better insulate the arbitrator from the lawyers and lessen the pressures noted above, especially if the arbitrator does not know if or who the org/provider contacted (that should not be revealed). It may not be a perfect solution, and it probably can be improved upon, but it's better than the DIRECT approach and may allow the sharing of relevant information.

    Just my "two cents". Hope this helps.
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  • Sunday, January 26, 2025 2:31 PM | Perry Taylor
    Absolutely not.
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  • Sunday, January 26, 2025 2:55 PM | Gary D Quesada
    The reference has value to the arbitrator. If the reference is given, then in an active matter a party or its counsel is gifting the arbitrator something of value. That is clearly outside ethical boundaries. It's not just an issue of "looking" bad, it is bad.
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  • Sunday, January 26, 2025 3:22 PM | Robert A Shipley
    Clearly inappropriate and an Arbitrator should recognize the impropriety of such a request. Whether vast experience or less the Arbtirator should recognize that even the slightest hint of impropriety or bias is improper.
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  • Sunday, January 26, 2025 4:08 PM | Joe Cox
    As a professor of professional responsibility and ethics at SMU School of Law, I can tell you that there is no doubt this would be an ethical violation. After a reasonable time after the matter concludes, this request could be made but would have to be disclosed in future arbitration matters with the counsel who provided the recommendation for the arbitrator.
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  • Sunday, January 26, 2025 4:14 PM | David W. Ichel
    I would not during an arbitration due to an appearance of impropriety. It would be different well after the close of an arbitration.
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  • Sunday, January 26, 2025 4:36 PM | Dan Deuprey
    Agree with the comments stating
    absolutely NOT, during a pending arbitration. After the arbitration, aside from AAA rules forbidding subsequent contact, it seems fraught with ethical sand traps to seek out such references. This is especially true in consumer cases, where an arbitrator frequently sees the same firms filing future claims which may also come before the arbitrator.
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  • Sunday, January 26, 2025 5:18 PM | David M Wells
    I am surprised this is even a question. Totally inappropriate! Not even a close call.
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  • Sunday, January 26, 2025 5:22 PM | Anonymous
    No way would this be appropriate.
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  • Sunday, January 26, 2025 5:52 PM | Stephen Bachman
    NO!
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  • Sunday, January 26, 2025 6:18 PM | Barry Goldman
    Certainly not while there is a matter pending.
    After that I would borrow language like might reasonably raise the suggestion of a quid pro quo.
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  • Sunday, January 26, 2025 6:21 PM | Mark Calhauon
    Definitely no during. Maybe after a year
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  • Sunday, January 26, 2025 6:23 PM | Alan M Fisher
    I agree with the responses that it is impermissible during the pending arbitration. Asking for the reference places an unfair burden on the party/attorney. If you ask both, it is even worse since they will compete to make the Arbitrator happy.
    After the arbitration it is still problematic because the award could be questioned since the Arbitrator may have made the award with the request for a reference in mind.
    If the request from the organization was made after the award, and a reasonable period of time has elapsed, it would be allowed with the understanding that the arbitrator would have to disclose the request or conflict out.
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  • Sunday, January 26, 2025 7:31 PM | James R. Madison
    Shame on any such arbitrator.
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  • Sunday, January 26, 2025 10:32 PM | abigail pessen
    Absolutely not! And that goes for counsel/party in a previous matter too - because it would create the perception of partiality and it's just unseemly.
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  • Sunday, January 26, 2025 11:29 PM | Paul Ngotho
    1. Would a sensible judge seek references from parties or counsel who have cases before him/her? No? Don't.
    2. Ex parte communication is a bottomless pit. Don't enter.
    3. Surely, an arbitrator should have other people to get references from.
    Paul Ngotho, Kenya.
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  • Monday, January 27, 2025 12:02 AM | Stanley Chinitz
    Chip Mitchell "took the words out of my mouth." The answer to the question is absolutely not. The request for a favor by the arbitrator of one of the parties will very likely cause the non-requesting party to justifiably fear that the arbitrator may favor or could become indebted to opposing counsel.

    A request by an arbitrator to a party or attorney who previously appeared before the arbitrator may cause the counterparty to view the arbitrator as in his or her debt. If the arbitrator is a candidate to adjudicate a new matter involving the counterparty the arbitrator will be required to disclose the request. Both scenarios have "a bad aroma," which must be avoided.
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    • Monday, January 27, 2025 12:32 AM | Barry Ostrager
      I would join the symphany or respondents who believe it is never appropriate for an arbitrator to stray from his or her duty to deal with the case on the merits and to refrain from seeking assistance from a party or counsel unrelated to the issue being arbitrated
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  • Monday, January 27, 2025 2:21 AM | Nahendran Navaratnam
    Arbitrators should not ask for any recommendations from either counsel for two reasons. First, there should be no communications between the arbitrator and one side without the knowledge of the other side- even if the request is made to both sides, it puts the parties in the awkward position of worrying about offending the arbitrator if they refuse the request. Second, the request in effect seeks a validation of the arbitrator and his conduct to date which is not appropriate.
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  • Monday, January 27, 2025 10:06 AM | Scott Zucker, Esq.
    This question is so timely. I was applying to participate in another arbitration panel and I was asked to gather references from counsel on both sides from a previous arbitration to support my application. I Think that creates a direct conflict to ask for a reference - Certainly you cannot ask the side that may have lost. Seems uncomfortable and unprofessional to even approach them
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  • Monday, January 27, 2025 10:31 AM | Jeremy M. Goodman
    I join my esteemed colleagues in being entirely against seeking a reference during a pending matter or during the time for any correction or appeal of such a matter.

    It is perhaps less objectionable to seek such a reference afterward but it does create potential issues--including, I would posit, the potential need for disclosure of that reference in future conflict disclosures. I have chosen to avoid that practice to make my life easier.
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  • Monday, January 27, 2025 11:32 AM | Les Maerov
    I would not, ever, consider asking arbitration counsel or a party for a reference for acceptance into an organization. This amounts to a favour, which carries an obligation for a return of the favour, or the perception that it does. This is an untenable position and should not be considered.
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    • Monday, January 27, 2025 12:06 PM | Bill Alexander
      No. I am a purist; an arbitrator must be as close as possible to being as pure as Caesar’s wife. References surely can be found elsewhere.
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  • Monday, January 27, 2025 12:14 PM | Gregory Classon
    Interesting dialogue here and, understandably, no real debate about best practices being to stay away from requesting a reference. From what I can tell, the IBA Guidelines on Conflicts of Interest do not have anything squarely on point in their red, orange and green lists, but I note that the green list, at rule 4.3.1, talks about a relationship between an arbitrator and another arbitrator or counsel in the "same" professional association, etc. It does not mention "prospective" membership in such a group or a group that is not the same, suggesting the need for disclosure and, possibly, waiver by the parties of the requested reference under the orange or waivable red lists. It seems that circumstances would have to be pretty unique for a neutral to want to throw potential doubt on impartiality that might arise from this sort of disclosure.
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  • Monday, January 27, 2025 1:31 PM | Les Werlin
    My response is "no" to both questions.
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  • Monday, January 27, 2025 1:49 PM | Edward Zulkey
    I believe it would be inappropriate to ask in pending arbitration
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  • Monday, January 27, 2025 3:46 PM | William "Zak" Taylor
    No. Never. This is just one of those things that being a neutral means foregoing. The most I'm willing to do is ask counsel in closed arbitrations for feedback on what I could have done better.
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  • Monday, January 27, 2025 5:03 PM | Laurel G Yancey
    Based on my analysis of the Code of Ethics for Arbitrators in Commercial Disputes, it would not be appropriate for an arbitrator to ask a party or counsel to serve as a reference during a pending arbitration matter. Here's why:

    1. Canon I(C) states that "while serving as an arbitrator, a person should avoid entering into any business, professional, or personal relationship...which is likely to affect impartiality or which might reasonably create the appearance of partiality." Asking for a professional reference would create such a relationship.

    2. Canon I(D) requires arbitrators to "conduct themselves in a way that is fair to all parties and should not be swayed by...self-interest." Requesting a reference creates a situation where the arbitrator may appear to have a self-interest in maintaining favor with the party they're asking.

    3. Canon II(A) requires disclosure of "any known existing or past financial, business, professional or personal relationships which might reasonably affect impartiality." Creating a reference relationship during the proceeding would necessitate such disclosure and could create doubts about impartiality.

    Regarding when it might be acceptable after an arbitration concludes:

    Canon I(C) provides guidance by stating: "For a reasonable period of time after the decision of a case, persons who have served as arbitrators should avoid entering into any such relationship, or acquiring any such interest, in circumstances which might reasonably create the appearance that they had been influenced in the arbitration by the anticipation or expectation of the relationship or interest."

    While the Code doesn't specify an exact timeframe, the key consideration is whether enough time has passed that there could be no reasonable perception that the arbitrator's conduct during the arbitration was influenced by the possibility of requesting such a reference later.

    A conservative approach would be to:
    1. Wait at least one year after the conclusion of the arbitration
    2. Ensure there are no pending appeals or challenges to the award
    3. Confirm there are no related matters pending between the parties
    4. Make clear that the reference request relates solely to observed conduct during the concluded arbitration

    This approach would better align with the Code's emphasis on preserving both actual and apparent impartiality in the arbitration process.
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  • Monday, January 27, 2025 5:25 PM | Mollie W. Neal
    I believe it is unacceptable for an arbitrator in a matter to ask a party or counsel to provide a reference for his or her application for admission to the Bar or another professional organization. Such a request has the potential of raising an issue of the arbitrator’s impartiality during the arbitration.

    The propriety of an arbitrator making such a request after an arbitration is also questionable in my mind, certainly if made prior to the finality of an award or the closure of the case.

    After the arbitration is over, if such a request is deemed acceptable, I would argue that there be at least a 2 year lapse in time between the conclusion of the arbitration and such a request. Such a timeframe would allow for the exhaustion of any post award court challenge.

    Finally, I believe the arbitrator has an absolute duty to avoid the appearance of partiality and that such a request, should not be made at any time by the arbitrator of any party or attorney who appeared before him and her in an arbitration proceeding.

    Mollie W Neal
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    • Monday, January 27, 2025 6:09 PM | Lionel M. Schooler
      I consider an Arbitrator’s requesting a reference from a party or its counsel in a pending arbitration to be unacceptable conduct by the Arbitrator.

      First, it constitutes the Arbitrator’s engaging in a form of marketing activity that has no place in the Proceeding.

      Second, it will inevitably be construed by the party or counsel who is solicited as a request by the Arbitrator for a “favor,” the negative response to which by either of them would risk alienating the Arbitrator, and the positive response by either of them as currying favor with the Arbitrator.

      Third, if the Arbitrator only approaches one party or counsel for this reference, then such a request will be seen by the non-solicited party or counsel (accurately or not) as the Arbitrator’s attempt to curry favor with the opposing party, calling into question the neutrality/partiality of the Arbitrator.
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  • Monday, January 27, 2025 6:33 PM | Linda Bramlett Stewart Houston TX
    To engage in any ex parte communication that would give the presumption of bias (i.e. asking for a recommendation) is outside the rules of Ethics. Absolutely not.
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  • Monday, January 27, 2025 9:17 PM | Mark Heley
    I agree with the vast majority of responses that say It is not acceptable to request one of the parties or counsel in a pending matter to serve as a reference. I extend that view to a similar request relating to a prior arbitration matter.
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  • Tuesday, January 28, 2025 11:04 AM | Anonymous
    Absolutely not. Period. The thought shouldn't even enter the arbitrator's mind under the scenario posed.
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  • Tuesday, January 28, 2025 4:47 PM | Phil Cutler
    Under no circumstances while arbitration is pending or any post-arbitration litigation possible, even if arbitrator is functus officio. While I personally would not, one could make an argument that it might be acceptable after a year or two. If done, should address the request to all parties/counsel.
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  • Saturday, February 01, 2025 6:50 PM | Steve Smith
    I agree with the comments below that is is never acceptable to ask one of the parties or counsel for a reference, or any other favor, during a pending arbitration. But I agree with comments below, depending upon circumstances, it may be acceptable after a decent interval has passed, but certainly not less than a year
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  • Sunday, February 02, 2025 3:19 PM | George Wood
    Simple. I am of the opinion an arbitrator should not request a reference putting individuals in a position of conflict
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