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Motion to Disqualify Opposing Counsel

Thursday, March 05, 2026 6:03 PM | Anonymous

disqualified Archives - Redeeming God

How should an arbitrator best handle a motion by one side to disqualify opposing counsel?

What are your thoughts?


Comments

  • Friday, March 06, 2026 11:03 AM | Bryan F. Hickey
    I may be wrong of course, but it is my thought (for what it may be worth) that the law regarding arbitrator's authority to issue sanctions is such that an arbitrator is generally best advised to not test whether her authority extends to attorney disqualification absent truly extraordinary circumstances (for example, fraudulent conduct or attorney disbarment, or relevant court order received). Of course, the arbitrator may issue rulings related to improper conduct consistent with the rules and applicable governing law. As always, any arbitrator action must be tempered so as not to exceed her authority and imperil an award, etc.
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  • Friday, March 06, 2026 11:32 AM | David E. Robbins
    I don't see how the arbitrators have the contractual authority to entertain or grant the motion.
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    • Friday, March 06, 2026 1:31 PM | Debra A. Jenks
      I agree.
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  • Friday, March 06, 2026 11:59 AM | Pat Guinan
    Rule 60 allows an arbitrator to sanction a party for failure to follow an arbitrator's order including limiting a party's participation. Presumably, sanctions would also extend to a party's attorney. But I don't read this to mean an arbitrator has authority to disqualify counsel. And if the basis for disqualification is something other than failure to follow an arbitrator's order, it seems that disqualifying counsel is outside an arbitrator's scope of authority. One option could be to direct the moving party to petition their court to disqualify opposing counsel.
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    • Friday, March 06, 2026 1:33 PM | Paul Marrow
      Reluctantly I agree with Pat. Rule 60 (a) is broad enough to allow the arbitrator to fine the party whose lawyer is causing a problem and if the fine is stiff enough, that might serve the rein in the lawyer involved. In addition, the arbitrator could order payment of the fine within a short time limit forcing the lawyer to confront his/her bad - inappropriate behavior.
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  • Friday, March 06, 2026 12:09 PM | Cecil Morris
    I agree with Bryan about being circumspect in dealing with motions to disqualify, but that really applies to most motions, especially dispositive motions. That said, I think an arbitrator has the power to decide motions to disqualify, absent an express carve out or limitation in the parties' arbitration agreement (which I've never seen). Indeed, I think an arbitrator has a duty to hear and determine such motions. Otherwise, the proceeding could be undermined or adversely affected by a conflict of interest, which is the usual ground for a motion to disqualify. If the arbitrator permits such a motion based on its gatekeeping function under the Rules, a schedule for briefing should be set, including the submission of evidence by affidavit and documents. If the evidence is controverted, the arbitrator could set a short hearing on the motion. Finally, disqualification is not ordinarily a sanction.
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  • Friday, March 06, 2026 12:10 PM | Cecil Morris
    I agree with Bryan about being circumspect in dealing with motions to disqualify, but that really applies to most motions, especially dispositive motions. That said, I think an arbitrator has the power to decide motions to disqualify, absent an express carve out or limitation in the parties' arbitration agreement (which I've never seen). Indeed, I think an arbitrator has a duty to hear and determine such motions. Otherwise, the proceeding could be undermined or adversely affected by a conflict of interest, which is the usual ground for a motion to disqualify. If the arbitrator permits such a motion based on its gatekeeping function under the Rules, a schedule for briefing should be set, including the submission of evidence by affidavit and documents. If the evidence is controverted, the arbitrator could set a short hearing on the motion. Finally, disqualification is not ordinarily a sanction.
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  • Friday, March 06, 2026 1:17 PM | Eric D. Kuritzky, Architect, CBO, Arbitrator
    I concur with the others....it is not the arbitrator's authority or responsibility to deal with the opposing attorney, aside from noting a problem. Anything beyond that should be brought to the attention of the AAA. All decisions on the case should be based on the facts and documents presented.
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  • Friday, March 06, 2026 2:07 PM | Steven Skulnik
    Arbitrators should decide the application, just as they would any other application. If parties agree to apply the IBA Guidelines on Party Representation (IBA GPR) to their arbitration proceedings, the arbitral tribunal
    should have authority to exclude a conflicted counsel. Similarly, the ICC Rules, for example, grant the arbitral tribunal — not the arbitral institution — the power to disqualify conflicted counsel.

    Tribunals have also relied on inherent authority to protect the process. A well-known example is Hrvatska v. Slovenia, where an ICSID tribunal excluded counsel to protect the tribunal's integrity after a late-added counsel created a conflict issue with the presiding arbitrator.

    Many US courts have held that, where the arbitration agreement gives the arbitrator power to resolve all issues between the parties, the arbitrator, rather than the court, is in the best position to address attorney misconduct or disqualification during the arbitral proceedings (see G & B II, P.C. v. Gudeman, 2014 WL 3512909, at *5 (Mich. Ct. App. July 15, 2014) (affirming the denial of a law firm's motion for sanctions against a client's arbitration counsel for misconduct during the parties' attorney fee arbitration, holding the aggrieved party should have requested the sanctions from the arbitrator); SOG-SMG, Inc. v. Day & Zimmermann, Inc., 2010 WL 3634204, at *2 n.12 (Del. Ch. Sep. 15, 2010) (denying motion by an arbitration claimant seeking monetary sanctions against and disqualification of the opponent's arbitration counsel for misconduct in misusing privileged electronically stored information (ESI), holding that the movant should have made the request to the arbitrator because the parties agreed the arbitrator was to resolve all controversies arising out of their business relationship and noting arbitrators are capable of addressing privilege and discovery issues); Canaan Venture Partners L.P. v. Salzman, 1996 WL 62658, at *2-3 (Conn. Sup. Ct. Jan. 28, 1996) (refusing to interfere with pending arbitration by hearing a motion to disqualify arbitration counsel, holding the arbitrator should decide the issue)).
    Still other courts have held that once the parties begin an arbitration, the court lacks the power to intervene and sanction arbitration counsel (see Positive Software Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 462-63 (5th Cir. 2010) (the district court cannot expand its inherent authority to impose sanctions on an attorney for misconduct in court-ordered arbitration, even if the complaining party did not discover the misconduct until after the arbitration, because the complaining party may ask the arbitral institution to re-open the proceedings to request sanctions from the arbitrator)).
    At least one court has held that by presenting the issue of attorney disqualification to an arbitrator, the parties may waive an argument that attorney disqualification is not arbitrable (see Moore v. Olson, 351 P.3d 1066, 1074 (Alaska 2015)).

    The New York City Bar Association is preparing a report on this issue. Stay tuned.
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    • Friday, March 06, 2026 3:02 PM | Steven Skulnik
      See also
      Restatement (Third) U.S. Law of Int'l Comm. Arb. § 3.9(d) ("Courts may refer to the arbitral tribunal issues regarding disqualification of counsel or alleged misconduct that occurs within or is directly related to the merits or procedures of an arbitral proceeding").
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    • Friday, March 06, 2026 6:31 PM | LeRoy Lambert
      I look forward to the NYC Bar Association report. Whether an attorney should be disqualified due to a conflict of interest (e.g., prior or simultaneous representation) is a dispute which arises under the Disciplinary Rules, not under a private contract between the parties. I do not see how arbitrators selected by the parties may, or should, decide whether an attorney has violated the Disciplinary Rules by accepting the representation and appearing before the arbitrators to represent a party. That issue must be decided by the judiciary, the body charged with enforcing the Disciplinary Rules under procedures established for doing so, not by fellow lawyers (or persons who are not even lawyers, as many arbitrators in specialized fields are).
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      • Saturday, March 07, 2026 12:53 PM | Steven Skulnik
        What court would have jurisdiction? Courts at the seat? Courts where the lawyer is a member of the bar that have no connection to the arbitration? That is why most courts refer the issue to the arbitrators.
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  • Friday, March 06, 2026 3:11 PM | George Graff
    I believe that, whether or not the panel has the power to disqualify an attorney, a party has the right to select its own attorney. However, it is perfectly appropriate to make it clear that the panel disapproves of attorney misconduct and that such misconduct will not enhance, and may even reduce, the panel's willingness to accept the attorney's arguments.
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  • Friday, March 06, 2026 3:42 PM | Daniel Feinstein
    I have had something similar, but not exactly on point: motions to disqualify non-attorney representatives in AAA Consumer cases. There are a few non law firm entities providing counsel to individuals regarding their legal rights and sometimes similarly provide debt relief services. AAA rules allow broad lattitude in representation. But there are at least two States in which such is deemed to be the unauthorized practice of law and I've had motions to disqualify on that basis. For a number of reasons unique to the cases, I have not yet had to rule on such motion though.
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    • Saturday, March 07, 2026 8:44 AM | Gordon A. Coffee
      I have been confronted with a motion to disqualify a non-attorney in a consumer case. Because the AAA rules allow representation by a non-lawyer "unless such choice is
      prohibited by applicable law," I felt that I had to rule on the motion and thus to determine whether the state rules on the unauthorized practice of law allowed the representation.
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  • Friday, March 06, 2026 6:19 PM | Carol Davis Zucker
    It depends on several factors. 1. Does the arbitration agreement state the arbitrator is to decide all disputes and issues between the parties? If so, it would seem to me the arb should decide the question just as the arbitrator is to decide the issues that would otherwise be decided by the court. If the language is narrower, I just do not know. 2. What is the reason the movant seeks disqualification? If it is due to a discovery issue, this would be the very last resort but still would be decided by an arbitrator. If the grounds are on an ethical issue, such as a conflict of interest or improperly viewing the other party's privileged/confidential materials (and this is where I have seen such motions granted by judges), it would appear to me the arbitrator has an obligation to protect the process as well as each party's rights. And so rule on the motion. 3. What do the rules of the arb organization say? It may be the province of the organization, but from looking at it from a due process standpoint, that itself may be problematic because of the other two factors noted above.
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