Partisan Arbitrator Exception

Partisan Arbitrator Exception

Rule 1.12 bars a former arbitrator from representing anyone in a matter the arbitrator handled personally and substantially, unless all parties give informed consent, confirmed in writing. The bar opens with its own escape hatch: "Except as stated in paragraph (d)."¹ Paragraph (d) supplies the exception. An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.²

A partisan arbitrator is the member a side picks to sit on a multimember panel as that side's own advocate. In one common arrangement, each side names a partisan, and the partisans then choose a neutral chair. The partisans help decide the dispute, yet everyone knows how each of them won the seat. An arbitrator who decides a dispute takes on duties much like a judge's: staying impartial and avoiding ex parte communications with the parties. The expectation of impartiality carries one stated carve-out, for the arbitrator selected as a party's partisan on a multimember panel.³

The exception follows from what the bar protects. The parallel rule for former government lawyers names the concerns directly: a lawyer should not exploit a past position to look attractive to future employers, later undercut the decision the lawyer helped make, or misuse confidential information gained in that role.⁴ Those concerns all assume a decision-maker whom the parties trusted to act without allegiance. A partisan never carried that trust. The party that chose a partisan wanted an advocate on the panel, so a later engagement for that party reveals nothing the opposing side did not already know. The neutral chair is different. Both sides relied on the chair's impartiality, so the full bar continues to apply to the chair.

The exam question is which seat the lawyer held, and the contrast is clearest on a single panel.

The exception is narrower than it first appears, and the text sets three limits:

• It applies only on a multimember panel. A sole arbitrator is the neutral and gets no benefit from it.
• It permits representation of "that party," the party who selected the partisan.⁵ A request from the opposing party falls outside that sentence. Paragraph (a) governs it, so the former partisan would need the consent of all parties, including the party the partisan once sat against.
• It requires no consent from anyone, because the party who might object knew from the start how the partisan was chosen.

Two errors come from ignoring those limits. One treats every former arbitrator as barred, which overlooks the carve-out. The other treats every member of a multimember panel as exempt, which stretches the carve-out to the chair.