Taming the Wild West of Arbitration Ethics

Abstract

The boundaries of ethical behavior in litigation are well known and understood in the legal community. Attorneys and parties cannot lie under oath, are prohibited from destroying documents, and are prohibited from tampering with witnesses. The criminal law and rules of attorney ethics have long prohibited these practices in order to ensure that the public system of dispute resolution (i.e., court) is fair by ensuring truthfulness and the preservation of relevant evidence. Whether these rules apply in the arbitral forum, however, is unclear, at best. The criminal laws dealing with perjury and tampering of witnesses and documents generally only apply to “official proceedings,” and arbitration likely does not fall within the definition of an “official proceeding.” The revisions to the ethics rules do cover the arbitral forum, but the criminal law has been slow to catch up. This paper recommends revising the definition of “official proceedings” to include the arbitral forum. Such revision would make the arbitral forum fairer, make the ethical rules and the criminal law more congruent, and it would fill an “accountability” gap that arises by operation of the increased operation of arbitral immunity laws. Revising the criminal law in such a manner, on a state-by-state basis, would create uniformity across the nation and hold accountable those (attorneys and non-attorneys alike) for engaging in conduct that is properly punishable in the litigation forum.