Taming the Wild West of Arbitration Ethics

Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes

Kristen Blankley, Assistant Professor at the University of Nebraska College of Law has authored an interesting article entitled Taming the Wild West of Arbitration Ethics, Kansas Law Review, Forthcoming. In her article, Professor Blankley examines legal ethics in the arbitral forum.

Here is the 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.

                        author

Beth Graham

Beth Graham received a J.D. from the University of Nebraska College of Law in 2004 and a M.A. in Information Science and Learning Technologies from the University of Missouri in 2006. She also holds a B.S. in Public Administration from the University of Nebraska-Omaha. She is licensed to practice law… MORE >

Featured Mediators

ad
View all

Read these next

Category

California Supreme Court Holds Attorney-Client Communications Related To Mediation Not Discoverable

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes. The California Supreme Court has ruled that private attorney-client communications related to a mediation remain confidential communications protected...

By Victoria VanBuren
Category

Am I A Thug Hugger?

I was giving a lecture on the work I did in a Juvenile Justice center and was trying to persuade the audience on the importance of restorative justice using transformative...

By Grace Eagle Reed
Category

Pace of Mediation in Labor Disputes

Kluwer Mediation BlogA significant motivation for businesses to choose mediation in labor disputes is the hope that mediation works fast and so will provide clarity within a short time frame....

By Machteld Pel

Find a Mediator

X
X
X