03 VTEO, 2003-01

• Court: Vermont

2003-01 Advisory Ethics Opinion 2003-01 Vermont Advisory Ethics Opinions 2003          SYNOPSIS:          A lawyer may not serve as an arbitrator in a workers’ compensation arbitration conducted pursuant to Vermont Department of Labor and Industry Workers’ Compensation Rule 8 when the lawyer currently represents one or more of the insurers involved in the dispute. However, if the lawyer previously has represented one of more of the parties to the arbitration and that representation is concluded, the lawyer can serve as arbitrator if full disclosure is made and all parties consent.          QUESTIONS PRESENTED:          In workers’ compensation arbitrations where the only issue to be decided is responsibility for workers’ compensation payments between insurance carriers, can an attorney serve as the arbitrator to render a decision when this attorney has or does represent one or more of the insurance carriers involved in the dispute if full disclosure is made and all parties consent?          ANALYSIS:          In Advisory Ethics Opinion 2001-06, this Committee concluded that: “ An attorney may not serve as an arbiter on an arbitration panel when one of the parties in arbitration is an ongoing client of the attorney, even though the attorney is not representing the client with respect to the matter and arbitration.” This conclusion was based, inter alia, on our view that arbitrators are “required to be impartial in the sense that they do not have any private personal stake in the matter or potential pecuniary advantage that would influence their decision.” Based upon Vermont Rule of Professional Conduct 8.4(d), which prohibits an attorney from engaging in conduct prejudicial to the administration of justice, we found in Opinion 2001-06 that: “Any outside financial benefit to the arbiter which goes beyond the payment agreed to for all arbiters in the proceeding would fundamentally undermine the integrity of the arbitration process and would violate Rule 8.4(d). For example, it would clearly not be proper for a party to offer an arbiter a contingency fee for the right outcome in arbitration.” Because “the arbiter has a duty of loyalty to the client and a pecuniary interest tied to maintaining a successful relationship with the client, ” we decided that an attorney cannot serve as arbitrator on an arbitration panel in a proceeding in which one of the lawyer’s clients is a party.          We recognize that there is authority to the...