The Michigan Rules of Professional Conduct clearly prohibit ex parte communications between an attorney and a judge. MRCP 3.5. The Attorney Discipline Board recently considered whether the same rule prohibited ex parte communications between an attorney and a neutral arbitrator. Grievance Administrator v Benson, Case No. 20-58-GA.
The text of the Rule 3.5 prohibits ex parte communication between an attorney and a “judge, juror, potential juror, or other official.” Thus, the technical question was whether a neutral arbitrator was an “other official” within the meaning of the Rule. The Attorney Discipline Board noted that in an unpublished decision, CSX Tranp, Inc v Atchison, Topeka & Santa Fe Railway Co, No. 216522 (April 7, 2000), Michigan’s Court of Appeals held an ex parte communication between an insurance company’s risk manager and a neutral arbitrator violated Rule 29 of the American Arbitration Association’s Commercial Arbitration Rules, which prohibits ex parte communication between a party and neutral arbitrator. Following the text of MRCP 3.5 and the logic of CSX Tranp, the Board concluded an ex parte communication between an attorney and a neutral arbitrator violated MRCP 3.5. The Board reasoned:
Alternative dispute resolution has become a substantial part of the civil justice system, and lawyers who represent clients in alternative dispute resolution are governed by the Michigan Rules of Professional Conduct … Allowing ex parte communications between one party’s attorney and the arbitrator would undermine confidence in the arbitrator’s neutrality, and the fairness of the process.
The Board noted its decision was not inconsistent with two opinions from the Michigan State Bar’s ethics committee. In RI-256, the ethics committee concluded ex parte communication between an unrepresented party and an arbitrator was unethical. Separately, in RI-274 the ethics committee concluded communication with a party-nominated arbitrator in a multiple arbitrator case was not unethical.