Arbitration Ethics and Professional Conduct in Dispute Resolution 5 — Questions and Answers
Question 1: Under the 2004 AAA/ABA Code, which advertising practice by an arbitrator is improper?
- Truthfully listing their experience and areas of expertise
- Publishing their general availability to serve
- Suggesting to prospective users that they will favor a particular type of party (Correct answer)
- Listing professional organization memberships
Correct answer: Suggesting to prospective users that they will favor a particular type of party
Arbitrators may advertise truthfully but must not suggest they would be partial to anyone.
Question 2: Under Canon I of the Code, when should a person accept an appointment as arbitrator?
- Only if they are competent to serve and can be available to start and finish the case promptly (Correct answer)
- Whenever both parties offer the appointment
- Only if they have previously ruled for both parties
- Whenever the fee meets their usual rate
Correct answer: Only if they are competent to serve and can be available to start and finish the case promptly
Canon I says to accept an appointment only if you are fully satisfied you are competent and can give the case reasonable time and attention.
Question 3: Under the IBA Guidelines, which situation is on the Green List and generally does not need to be disclosed?
- The arbitrator currently represents one of the parties
- The arbitrator served as counsel against a party within the past three years
- The arbitrator previously published a general legal opinion, not focused on the case, on an issue that also arises in the arbitration (Correct answer)
- The arbitrator's law firm currently advises a party's parent company
Correct answer: The arbitrator previously published a general legal opinion, not focused on the case, on an issue that also arises in the arbitration
Earlier general opinions, such as a law review article not focused on the case, are on the Green List.
Question 4: Under the IBA Guidelines, an arbitrator served as counsel for one of the parties two years ago on an unrelated matter. This falls on which list?
- Non-Waivable Red List
- Waivable Red List
- Green List
- Orange List (Correct answer)
Correct answer: Orange List
Serving as counsel for a party within the past three years is an Orange List situation, so it must be disclosed, and the parties are deemed to accept it if they do not object in time.
Question 5: Under ABA Model Rule 1.12, when may a lawyer who served as a mediator represent a client in the same matter?
- Never, under any circumstances
- Only if all parties to the proceeding give informed consent, confirmed in writing (Correct answer)
- Freely, once one year has passed
- Only if the mediation did not lead to a settlement
Correct answer: Only if all parties to the proceeding give informed consent, confirmed in writing
Rule 1.12(a) bars such representation when the lawyer participated personally and substantially, unless all parties give informed consent confirmed in writing.
Question 6: Under ABA Model Rule 2.4, a lawyer serving as a third-party neutral with an unrepresented party must:
- Inform the unrepresented party that the lawyer is not representing them (Correct answer)
- Provide that party with free legal advice
- Refuse to proceed until the party hires counsel
- Draft the settlement agreement in that party's favor
Correct answer: Inform the unrepresented party that the lawyer is not representing them
Rule 2.4(b) requires a lawyer-neutral to tell unrepresented parties that the lawyer is not representing them, and to explain the difference if they seem confused.
Question 7: During a mediation, an attorney falsely tells the other side that the client's insurance policy limit is $100,000 when it is actually $1 million. Under ABA Model Rule 4.1, this is:
- Acceptable puffery, as in any negotiation
- Acceptable because mediation statements are privileged
- Acceptable if the mediator does not object
- A violation, because it is a false statement of material fact to a third person (Correct answer)
Correct answer: A violation, because it is a false statement of material fact to a third person
Rule 4.1 bars knowingly false statements of material fact to third persons, and the comments distinguish factual matters such as policy limits from mere estimates of value.
