We received an update this week from a LinkedIn discussion group that highlights a recent California Second Appellate District Court decision to vacate an arbitral award in a legal malpractice case. The defendants discovered, after the fact and after an adverse award, of course, that the arbitrator, a retired Los Angeles Circuit Court judge, who had disclosed his professional work with the defendant law firm, but had not stated that a partner of that firm was listed as a reference on an online resume, many years before (the synopsis called it a “decade old”). The commentator concluded “…the trend seems to be toward disclosure of all matters, however trivial, as well as the imposition of a duty of due diligence in identifying matters to disclose.”
We are challenged by this issue every day as family and divorce mediators and arbitrators. People come to us almost exclusively because they either know us, or know of us by reputation, (shhh, don’t tell our website/SEO experts, who like to feel otherwise) so the potential for disclosures, trivial and otherwise abounds. It is a sensitive matter in mediations, an uber-sensitive in arbitrations. We are surprised how few questions people ask about conflicts and potential conflicts; and we do our best to disclose anything at all that could possibly impact our objectivity – or just as importantly – the appearance of it. But, who’s perfect?
In a long career and with all kinds of significant and passing electronic contacts abounding, among cases, bar programs, educational activities and previous private dispute resolution engagements, the potential for “relationships” of all kinds is too great to quantify. Surely, we are the ones holding ourselves out as available competent and ethical service providers. We do and need to take our disclosures entirely seriously. And, people sometimes think us silly for the disclosures that we do make.
But, shouldn’t this responsibility be shared to some reasonable degree? The internet is equally available to consumers of our services, as it is to us. Anyone, anytime, can Google us, inquire about search results, or simply walk away. But to await an unhappy result, then suddenly discover the web, and complain, seems like a good idea run amok: appeal by ambush, perhaps. Didn’t the plaintiffs in the California case have some due diligence obligations themselves – before the fact?
We will work every day to get this right. But, how about some balance?