Brothers appealed from a superior court order denying their petition to vacate several awards of an arbitrator with whom they were dissatisfied. They contended the arbitrator failed to disclose his professional relationship with opposing party’s counsel. In 2011, one of the appellants discovered that the arbitrator was a former member of the same law firm as the opposing party’s attorney – a professional relationship that ended in 1996. The arbitrator had been engaged in 2001, and had performed arbitration services for the parties until he resigned in 2011. Estate of Mapes, A136086 (1st Dist. Div. 2 June 3, 2014) (Kline, Richman, Brick) (unpublished).
Though Code of Civ. Proc., section 1281.9 requires disclosure of “any professional or significant personal relationship”, evolving case law doesn’t require disclosure of any professional relationship. Pointing to rules that are concerned about only two years of relationships (Ethics Stds., std. 7(d)(8)(A), Code of Civ. Proc., section 170.1(a)(2)), the Court concluded a five year old relationship did not need to be disclosed.
For good measure, the Court also concluded appellants were aware of the professional relationship, and failed to raise the issue timely. Courts do not like sandbagging – waiting “until the arbitration was over, and then [moving] to vacate the award, despite having failed to move to disqualify the proposed arbitrator before the arbitration commenced.” Dornbirer v. Kaiser Foundation Health Plan, Inc., 166 Cal.App.4th 831, 846 (2008).
CAUTION: Don’t view the two year limitation as an absolute safe harbor. Section 1281.9(a) also requires that a proposed neutral arbitrator disclose “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.”