Nolan v. Kenner (CA1 3/31/11)

An opinion that the court is careful to tell us does not deal with the unauthorized practice of law nor the circumstances in which a California attorney can represent clients at arbitration in Arizona.

The parties mediated their dispute. Plaintiffs won and, pursuant to statute, moved for an order confirming the award. Defendants opposed it because the plaintiffs’ attorney at arbitration was a California lawyer, not a member of the Arizona Bar. Defendants didn’t know or ask about that at the time but somehow found out later. The trial court confirmed the award; this opinion affirms.

The reasons for refusing to confirm an award are set by statute, among them that the award was procured by “corruption, fraud or other undue means.” Defendants argued that using an out-of-state lawyer was “undue means.”  But “undue means” involves bad faith and intentional misconduct “equivalent in gravity to corruption or fraud.” Using a California lawyer didn’t, the court tells us, because the lawyer “took no steps to conceal his lack of Arizona bar membership.”

In addition, the undue means have to be undiscoverable and “materially related to the issue.” The court turns discoverability into a policy question, presumably because the cases it relies on are federal rather than from Arizona. Arizona cases say that mediation is speedy and inexpensive (which is also what lawyers tell their clients, who are routinely shocked and disappointed to learn the truth), thwarting awards for things that could have been discovered wouldn’t be, so you can’t.

(A footnote suggests that some sort of waiver may also be involved but doesn’t explain why and doesn’t seem to fit the sentence it foots, so it’s hard to know what the court had in mind.)

“Materially related” means that something “had an impact on or influenced the arbitrator’s decision itself.” The court decides that the Nolan’s lawyer didn’t – which it apparently doesn’t mean as an insult, as we’ll see when we get to the attorney-fee part at the end.

What about UPL? The court says that the opinion doesn’t affect that since the Bar could still sanction the attorney. And it doesn’t prevent refusing to confirm an award “if the attorney procuring it misrepresented or actively concealed his or her nonmembership in the Arizona bar.” That conclusion isn’t necessarily supported by the rest of the opinion, though, since it deals with “undue means” but not “materially related.” In any event, the court points out in a footnote that an advisory opinion allows foreign lawyers to arbitrate here under circumstances the court quotes at length and then tells us it hasn’t considered because it doesn’t matter whether this was UPL or not. But since it may be a bit hard to square this opinion with some of the more expansive UPL language that our courts and lawyers have thrown around it’s easy to feel that the court thought this probably wasn’t UPL anyway.

Finally, Defendants argued that the award should at least not be confirmed to the extent that it awarded fees to the California attorney. But the statute says that the court can’t modify the award (except, basically, for evident mistakes that can be corrected without otherwise affecting the award). Striking the fee award would modify the arbitrator’s findings and conclusions that the attorney was entitled to them. So, the court affirms the fees as well.

(link to opinion)