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Conflict of Interest?

Thursday, May 01, 2025 7:27 PM | Anonymous

Conflict of Interest Revisited - Chicago Headline Club

An arbitrator is presiding over an arbitration in which one side is represented by attorneys from  “big law” firm. Those attorneys work out of the New York office.  “Big law” firm is sponsoring an in-person CLE of interest to the arbitrator. It will take place in the New York offices while the hearing is ongoing.  May the arbitrator attend that CLE? Should he/she? Would the answers be different if the CLE took place in a different city office from the location from which the attorneys work? If the arbitrator decides to attend, should he/she first make a disclosure to the parties in the arbitration of his upcoming attendance?

What are your thoughts?


Comments

  • Thursday, May 01, 2025 7:46 PM | jeffrey kravitz
    Pass. We need to avoid even the appearance of a conflict of interest.
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    • Thursday, May 01, 2025 7:50 PM | Carole Crosby
      The Arbitrator should not attend. We need to avoid the appearance of impropriety. I know that if I were a party to the proceeding the Arbitrator's attendance would make me very uncomfortable.
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      • Thursday, May 01, 2025 7:58 PM | Barry R Ostrager
        I think if the arbitrator discloses his plans to the parties attending the CLE is not disqualifying. Nevertheless, it is extremely poor judgment for the arbitrator to be wandering around any office of Big Law.
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    • Thursday, May 01, 2025 7:54 PM | Mark Painter
      Agree, unless I am a speaker. But that would be known way in advance, and would have passed on the case initially.
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    • Thursday, May 01, 2025 8:22 PM | David E. Robbins
      Having chaired and attended countless CLE programs, I know from experience that they are not limited to listening to "talking heads." Before they begin, during breaks and thereafter, attendees often chat with other attendees and during the presentations questions are frequently asked of speakers. There's even a chance that the CLE program could touch on an issue or two in the pending arbitration. I think it's best to take a pass for "the appearance of bias" is a very broad concept.
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    • Thursday, May 01, 2025 8:22 PM | Jack Marshall, KC
      disclosure to both parties required in advance. If neither objects ( need to get it in writing} then ok. Otherwise don’t go.
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    • Friday, May 02, 2025 11:46 AM | Ernest C Brown
      I Agree. There are so many opportunities for CLE that a passing interest in the topic is insufficient to justify this meeting at their office. Also, we need to refrain from ANY "ex-parte contact." As they say, it takes a lifetime to build a reputation, and only a minute of thoughtlessness to compromise it in the eyes of the public.
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    • Friday, May 02, 2025 2:16 PM | Deborah Rothman
      Of course, Jeff is correct. In my mind, the more interesting question is whether the arbitrator may attend a zoom CLE presentation by The Firm representing one side in a pending arbitration?
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      • Friday, May 02, 2025 6:29 PM | Eric van Ginkel
        I agree with Deborah and Jeff. If it would be a CLE webinar (in Deborah’s example via Zoom presented by Big Law), in my experience, the participants are frequently not even visible (at least not by another participant). I would disclose (of course), but attend (if really important to the arbitrator in question).
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    • Friday, May 02, 2025 2:17 PM | Deborah Rothman
      Jeff is correct, of course. In my mind the more interesting question is whether they arbitrator may, with appropriate disclosures, attend an online Zoom presentation given by Counsel for one of the parties in a pending arbitration?
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  • Thursday, May 01, 2025 7:46 PM | James Elegante
    The arbitrator should make a supplemental disclosure to the parties if he decides to attend. But, the arbitrator should ask himself whether the prospective CLE is really necessary because his attendance may cause harm to the parties if there is an objection to his continuing as the neural in the case.
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    • Thursday, May 01, 2025 7:53 PM | Scott Skaletsky
      I agree with James Elegante above. I believe that on one hand, a supplemental disclosure should be made, detailing the need for the arbitrator to appear and that it will not impact his or her ability to remain impartial. But on the other hand, the arbitrator should truly decide whether it is that significant to attend such that it would raise doubts about the ability to proceed.
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  • Thursday, May 01, 2025 7:51 PM | David Slaughter
    It’s hard to avoid the appearance of a conflict when you invite it.
    I’d find another CLE of interest.
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  • Thursday, May 01, 2025 7:53 PM | Nasri H Barakat
    I believe that a disclosure before hand is in order and if the subject matter of the CLE is not in any way related to the subject matter of the hearing, the arbitrator may attend the CLE. The arbitrator should not attend the CLE in person if the hearing is ongoing. The location of the CLE is not impactful except for the convenience for attendance.
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  • Thursday, May 01, 2025 7:54 PM | Kent Sinclair
    No, the arbitrator should not attend a CLE hosted by a party’s law firm during the arbitration. Even in a different city office, it creates a reasonable appearance of impropriety and partiality. It’s just a CLE—it is not worth the perception of lacking neutrality. if attendance is seriously considered, full disclosure is the bare minimum.
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    • Friday, May 02, 2025 9:40 AM | Vanessa Kelly
      I agree with this post. Avoid appearance of impropriety, but disclosure if attending, which should be thoughtfully considered since it may suggest adversely on neutrality.
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    • Friday, May 02, 2025 9:45 AM | Vanessa Kelly
      I agree with this post. Avoid appearance of impropriety, but disclosure if attending, which should be thoughtfully considered since it may suggest adversely on neutrality.
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  • Thursday, May 01, 2025 7:56 PM | Rebecca A. Bowman, Esq., P.E.
    Initially my thought was the easy rule: "When in doubt, disclose." However, I don't think that that would work in this situation. Arbitrator is already presiding. In addition to the other comments about the appearance of impropriety, to disclose at this point would pressure the other party to waive the conflict to avoid having to start over with a new arbitrator. That doubles the problem.
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  • Thursday, May 01, 2025 8:00 PM | Marc Elliott
    There is no conflict of interest or appearance of impropriety if an arbitrator attends a CLE seminar sponsored by a law firm that has a matter pending before him or her, but the arbitrator should disclose their plans to all counsel and see if there are any objections The overriding concern here, as in most areas where the arbitrator has discretion, is to ensure the sanctity of the award so it cannot be overturned.
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  • Thursday, May 01, 2025 8:09 PM | Robbie MacPherson
    With proper disclosure the arbitrator “may” attend. But the arbitrator should not. Why create a problem?
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  • Thursday, May 01, 2025 8:14 PM | Charles H. Barr
    Definitely disclose. If the attorneys presenting the CLE don't overlap with those involved in the arbitration, and the subject matter of the CLE doesn't overlap with the subject matter of the arbitration, I don't see a problem with attending if it doesn't interfere with the hearing. If the presenters overlap but the subject matters don't (which sounds unlikely), perhaps still not a problem. If the subject matters overlap, whether or not the presenters overlap, it's a problem. If the fee for the CLE is comped, or if food or lodging is provided for free, it's a problem even if there is no presenter or subject matter overlap. I don't see a difference if the CLE is in another city. Also, does the arbitrator have to pause the hearing to attend the CLE, or is the CLE a lunchtime, evening, or weekend event? Pausing the hearing to allow attendance at a CLE is poor case management at best, and ethically questionable at worst.
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  • Thursday, May 01, 2025 8:15 PM | Michael Fox
    I agree with those concerned with the possible appearance of favoritism. I don’t think that a disclosure solves the problem. The office doesn’t matter. It’s appearing to accord the big law firm with respect for it’s “expertise “.
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  • Thursday, May 01, 2025 8:22 PM | William M. Bankston
    The arbitrator should not attend. All parties to an arbitration must have confidence in the impartiality of the arbitrator. Disclosure and approval are not sufficient to overcome a latent perception of compromised impartiality.
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  • Thursday, May 01, 2025 8:24 PM | Brett Gross
    In my opinion, this is, at best, tawdry and unbecoming. At worst, a blatant conflict.

    It is beneath the honor of a member of the AAA panel.
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  • Thursday, May 01, 2025 8:42 PM | Rick Righi
    I too believe this creates, at the very least, the appearance of a conflict and the arbitrator should pass on the CLE. A disclosure to both sides ahead of time does not make attendance at the event any less problematic.
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  • Thursday, May 01, 2025 8:42 PM | Sandy Karlan
    I believe that the arbitrator should not attend under any circumstances while the matter is pending.
    Appearance of Impropriety is the catch phrase
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  • Thursday, May 01, 2025 8:59 PM | Karl Sieg
    Do not attend.
    Your integrity is priceless.
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  • Thursday, May 01, 2025 8:59 PM | Jorge González Carvajal
    The arbitrator must prevent any potential circumstances that may create a conflict of interest or its appereance. In this scenario the arbitrator shall not attend the CLE. There are many CLE to attend. Even disclousure and acceptance by parties does not reduce the risk.
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    • Thursday, May 01, 2025 9:20 PM | Paul Marrow
      Common sense says don't attend
      Imagine if your a party and arbitrator says he/she has something more important to do than pay attention to the case. You would be horrified. And we'll you should.
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  • Thursday, May 01, 2025 10:07 PM | Neil; Kaplan CBE
    When in doubt set it out. Never attend unless both sides agree in writing. But do not go unless it is very important.
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  • Thursday, May 01, 2025 10:15 PM | Jerome Allan Landau
    Quick response:
    No, should not attend – wherever the program is being presented.
    This part of the question seems illogical; how could the Arbitrator “attend” an in-person hearing “while the hearing is ongoing?
    If unfortunately the Arbitrator decides to attend, YES that Arbitrator must advise the other party.
    This would be similar to a situation where an Arbitrator had previously attended a program presented by an expert, and then fails to advise all the parties of same when the Arbitrator is advised that the expert will be called to testify before the Arbitrator during a hearing.
    Whether the Arbitrator believes this would potentially be a conflict, it is not the Arbitrator’s decision to make.
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  • Thursday, May 01, 2025 10:31 PM | Pat Kerrigan
    I was in this situation. I believe I had already registered for the event and made a disclosure that I was interested in attending and would not interact with lawyers from the hosting firm. No lawyers from the arbitration were present I believe it was an AAA event. There was no objection so I went.
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    • Thursday, May 01, 2025 10:35 PM | Pat Kerrigan
      I want to add this was not during the hearing but early in the case. The topic was not related to issues in the arbitration and while hosted by the firm it did not have firm lawyers as presenters, it was just being held at the office.
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  • Thursday, May 01, 2025 10:36 PM | Greg Bistram
    Pass on going. Why set up possible attack on arbitration award? Plenty of CLEs out there
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  • Friday, May 02, 2025 12:21 AM | John Delikanakis, Snell & Wilmer
    No, the arbitrator should not attend. Neutrality needs to be a paramount consideration by any arbitrator to maintain the legitimacy of the arbitral process. Asking the parties for permission to attend creates more problems than are solved. One party may feel that by objecting, it casts itself in a negative light in the eyes of the arbitrator. If the party refrains from objecting, it may feel that by allowing an arbitrator to attend a "big law" event at opposing counsel's firm it has sanctioned and waived an act that may negatively affect its case. Why place a party in that position?
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  • Friday, May 02, 2025 12:53 AM | Lisa Renee Pomerantz
    In addition to at least the appearance of a conflict of interest, there is also the potential for ex parte communications if the lawyers on the case from the "big law" firm are also in attendance.
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  • Friday, May 02, 2025 1:01 AM | James Gansinger
    Don’t go,
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  • Friday, May 02, 2025 5:38 AM | Paul Burkhart
    I would avoid the issue all together and pass on the CLE. Why create even a potential issue? If you must, it should certainly be disclosed.
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  • Friday, May 02, 2025 6:35 AM | Thomas P. Valenti
    1.) May the arbitrator attend? Yes, but only if the program is open to everyone, the arbitrator pays any fee, scrupulously avoids case discussion, and first gives the parties a chance to object.
    2.) Should the arbitrator attend? During an active hearing, the wiser course is to decline or postpone; the marginal educational benefit rarely outweighs the appearance-of-impropriety risk.
    3.) Does it matter if the CLE is in a different city office? Risk is lower but the same disclosure and caution are still advisable.
    4.) Must the arbitrator disclose beforehand? Yes – disclose in writing and invite comment. Failure to do so jeopardizes the award even if no actual bias exists.
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  • Friday, May 02, 2025 8:12 AM | George Lobman
    If there is any opportunity for an attendance to look bad it would be this. The appearance of a conflict is just as damaging as if the conflict did occur.
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  • Friday, May 02, 2025 8:33 AM | William Tucker
    He shouldn't attend the CLE Program wherever it is held.
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  • Friday, May 02, 2025 8:45 AM | Anonymous
    I think there is an appearance of a conflict and therefore the arbitrator should not attend. If the arbitrator decides to attend, disclosure to the parties is essential.
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  • Friday, May 02, 2025 8:50 AM | Mark Bunim
    I would not attend any CLE or other event at the involved law firm during the entire pendency of the arbitration, until after the final award is issued.
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  • Friday, May 02, 2025 9:50 AM | Robert L. Arrington
    I am squarely in the camp of not attending anything sponsored by one of the firms involved in the case until after I was confident that the case was completely over. I do not think this issue can be resolved by disclosure alone.
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  • Friday, May 02, 2025 11:23 AM | Anthony Zebouni
    I agree that you should avoid any action or participation that would give the appearance of partiality. I would not attend.
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  • Saturday, May 03, 2025 1:03 PM | Steve Platau
    In either situation it is best to avoid even the appearance of bias or conflict. There is also the possibility of an ex parte casual contact at the CLE. By way of example only, I was once seated next to counsel on an airplane flight and switched seats then disclosed the contact to the parties. You just can't be too careful in avoiding even the appearance of bias or conflict.
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