Author: Peter C. Thomas*
Published: December 1990
Description: In a case of “apparent first impression,” a New York state court recently decided in Bidermann that a motion to disqualify a lawyer from acting in an arbitration must be decided by judges, not by arbitrators. At first glance, the case may appear to have been decided correctly. It is often said that lawyers are “officers of the court.” Who better than judges should review the conduct of lawyers? What possible role could arbitrators play in such matters? The thesis of this article, however, is that Bidermann was wrongly decided, with important and possibly adverse consequences for domestic and international commercial arbitrations.
Part I of this article describes the Bidermann decision. Part II critiques the opinion and argues that, if contracting parties have so agreed, arbitrators should have the power to disqualify counsel who engage in misconduct that will clearly prejudice the fairness of the proceedings. In deciding that public policy required the opposite result, the Bidermann court did not give sufficient weight to the strong New York and United States policy — founded on the principle of party autonomy — that favors arbitration and severely limits judicial intervention in the arbitral process. Nor did the court give due recognition to the fact that allowing arbitrators to disqualify counsel would not interfere with the jurisdiction of courts to discipline lawyers.
*J.D., 1984 (University of California, Los Angeles); Associate Attorney, Simpson Thacher & Bartlett, New York. Mr. Thomas prepared the initial draft of this article while on exchange from Simpson Thacher & Bartlett to Freshfields, London. He gratefully acknowledges the guidance of Freshfields partners J. Martin H. Hunter, Paul Leonard, and Jan Paulsson. He also greatly appreciates the assistance of Simpson Thacher & Bartlett partner John J. Kerr, Jr. and associate attorney William T. Russell, Jr. The views expressed are solely those of the author.