Labor & Employment Law

If An Arbitrator Makes A Disclosure, Is He Then Required To Recuse Himself If A Party Objects?

If An Arbitrator Makes A Disclosure, Is He Then Required To Recuse Himself If A Party Objects?
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Arbitrators, are of course, required to be neutral. Many correctly err on the side of caution and disclose everything. What happens if they make a disclosure and a party then objects. Must they recuse themselves. No, says an appellate court in California, Luce v. Koch, __Cal. App. 4th (4th App. Dist. April 30, 2008). As the court reasoned:

Judge Haden's candor was commendable, and arbitrators should, of course, be encouraged to err on the side of disclosure. (See Commonwealth, supra, 393 U.S. at p.151.) We conclude, however, that substantial evidence supports the trial court's finding that Judge Haden was not legally required to make any disclosures pertaining to Steiner or Hallahan. In other words, the evidence shows a reasonable person would not have an impression of bias under the facts. There was no indication Judge Haden had a personal relationship, or close friendship, with either Steiner or Hallahan. Further, there was no indication of any business relationship between or among them. Rather, the contact was limited to serving with each other on the boards of directors of two professional organizations, and standing alone, that is insufficient. There is no disclosure requirement when "there has been some contact between the arbitrator and counsel, particularly when the contact is slight or attenuated. The Commonwealth case recognized that arbitrators cannot sever all their ties with the business world" (Ceriale v. AMCO Ins. Co. (1996) 48 Cal.App.4th 500, 505), and the same is true of professional obligations involving service to the legal community and the public, continuing education for bar members and mentoring for new lawyers.

An interesting May 2, 2008 article about this case appears in the Recorder and is available here.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on May 08, 2008 (boomark / email).