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The Sixth Circuit Court of Appeals determined that under California ethics standards, the neutral arbitrator was not required to disclose that his adult son previously worked in the law firm that represented one of the parties in the arbitration.
In Nolder v. Permanente Medical Group, No. H029816, 2007 WL 2819316 (6th Cir. Sept. 28, 2007), Nolder commenced arbitration proceedings against Permanente on her medical malpractice claims pursuant to the parties’ arbitration agreement.
The San Jose office of the Ropers law firm represented Permanente. Retired Judge William Giffen was selected as the neutral arbitrator and he found in favor of Permanente.
After the issuance of the arbitration award, Nolder learned that Judge Giffen’s son had previously been employed by Ropers’ San Francisco office. Nolder moved to vacate the arbitration award on the ground that Judge Giffen, by failing to disclose his son’s association with Permanente’s attorneys, had deprived Nolder of a neutral arbitrator.
The lower court denied Nolder’s petition noting that Judge Giffen was not required to disclose his son’s previous relationship with Ropers, nor would a person aware of the facts reasonably entertain a doubt that the arbitrator would be impartial.
In supporting the lower court’s decision, the Court noted that the California ethics standards for neutral arbitrators require a neutral arbitrator to disclose only his own prior association with an attorney for a party if that association occurred within the previous two years.
Additionally, the prior employment of an arbitrator’s children is limited to minor children living in the neutral arbitrator’s home and employment in the previous two years. Judge Giffen’s adult son did not live in his household and his employment at Ropers ended more than six years ago.
The California ethics standards do require arbitrators to disclose any facts that could cause a person aware of the facts to reasonably doubt that the proposed arbitrator would be able to be impartial.
The Court applied an objective standard and determined that an average person “would not reasonably entertain a doubt about Judge Giffen’s impartiality simply because, six years earlier, his adult son had been employed for two years in a different office of the large law firm that [represented Permanente].” Therefore, the Court affirmed the arbitration award, noting that the findings precluded Nolder from establishing grounds for vacating the arbitration award.
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