Ex-Justice’s Service as Referee Raises Questions

In what some experts said was an ethical lapse, a retired state Supreme Court justice who was appointed a $500-an-hour referee in a civil lawsuit failed to disclose that he recently had done legal work for one of the attorneys in the case, according to documents and interviews.

Armand Arabian, the retired justice, was appointed by a Los Angeles County Superior Court judge Dec. 17 to resolve pretrial disputes in a lawsuit over construction of an office building in Palmdale. One lawyer was R. Rex Parris.

Two months earlier, Parris and Arabian were co-counsel in a slander lawsuit before the state Supreme Court.

In an interview, Arabian acknowledged that he did not disclose his prior relationship with Parris but said it was fleeting and no one asked about it. Arabian said there is no requirement, legal or ethical, that he disclose his relationship with Parris. No one involved in the ongoing case has accused him of bias.

“If they had asked me, I would have told them anything that I remembered,” he said. Arabian said he would disqualify himself from the case now if the parties want him to do so.

None of the seven lawyers contacted by The Times was aware of Arabian’s prior relationship with Parris. When told about it, all declined to comment on the record. So far, none of the 12 attorneys involved in the case has asked Arabian to disqualify himself.

“If anyone has a complaint, all they have to do is file a [disqualification] paper and I’m gone,” said Arabian, a Van Nuys-based lawyer and private mediator who served on the state Supreme Court from 1990 to 1996. “This is a small matter in my life.”

Parris said ethics rules do not regulate such temporary professional bonds.

“I don’t think there is a lawyer alive who would think [Arabian] was biased because he wrote an appeal for a client I represented,” Parris said.

But the California Code of Judicial Ethics, the bible of judicial conduct in the state, requires a court-appointed referee to at least disclose relationships that under state law might be grounds to bar a sitting judge from presiding over a case. Specifically, the law says a judge must be removed from a case if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” That ethical requirements has been applied to court-appointed referees since March 1999.

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Additionally, the California Rules of Court, which have the force of law, state: “A referee who has been privately compensated in any other proceeding in the past 18 months as a judge, referee, arbitrator, mediator or settlement facilitator by a party, attorney or law firm in the instant case shall disclose the number and nature of other proceedings before the first hearing.”

However, the rule, in effect since 1993, does not specifically address temporary co-counsel relationships.

Despite those rather subjective standards, some ethics experts believe that Arabian should have told the other lawyers that he and Parris had recently worked together on a case.

“I think by not disclosing that fact, Justice Arabian acted improperly,” said Erwin Chemerinsky, a law professor at USC. “He had the clear duty to disclose.”

The case demonstrates the potential for perceived conflicts of interest in the relatively new and largely unregulated field of private judges, some experts said.

“This is the very type of incident that our recommendations were intended to correct,” said Jay Folberg, a University of San Francisco School of Law professor, who led a statewide advisory committee that studied private judging. It recommended stronger disclosure standards.

Officials of the State Bar of California said they have not yet brought disciplinary charges against any referee, in part because conflicts of interest are considered minor offenses that are unlikely to warrant investigation, given limited resources.

“Private judging just kind of falls through the cracks,” said Gerald F. Uelmen, a professor at Santa Clara University School of Law and an expert on the state court system.

Attorneys generally are reluctant to challenge referees, although they have the legal power to do so, because they are unwilling to risk angering the trial judge who appointed the referees and ultimately will decide the fate of their clients’ case.

“It is pretty clear, there is an intimidation factor here,” Folberg said.

None of the attorneys in the Palmdale case has accused Arabian of acting unfairly during four one- to two-hour sessions with him. But defense lawyers said they still wish they had known about his connection to Parris when Arabian was appointed.

Arabian, 65, considered a powerful force in the state’s legal community, was elevated to the Court of Appeal and state Supreme Court by Republican Gov. George Deukmejian. After retiring from the bench in 1996, Arabian opened a private dispute-resolution office in Van Nuys. He frequently attends San Fernando Valley events involving lawyers.

Arabian said he was not required, as a referee in the early stages of the lawsuit, to voluntarily disclose his previous relationships.

Arabian, who has so far billed the parties between $2,000 and $4,000, said no one sent him a disclosure form to complete.

“It’s not my responsibility,” Arabian said, casting the duty onto lawyers to ask him about potential conflicts. “If anyone had asked me for it, I would have provided it.”

When referees make disclosures, the lawyers in the case may ask them to step down. The disqualification decision is made by the referee or the trial judge.

Arabian downplayed his association with Parris in both cases. Parris is not actively involved in resolving the Palmdale case, Arabian said, and never appeared with him before the state Supreme Court.

“It was a meeting and a document, a very fleeting relationship,” Arabian said, describing their work together on the slander lawsuit against a radio talk show host late last year.

Parris said he and Arabian were “technically co-counsel” on the case but for only a short time.

Parris represents Senior Systems Technology Inc., a Palmdale firm that manufactures electronic components. Last year, he asked Los Angeles County Superior Court Judge Michael S. Luros to appoint a referee to oversee the pretrial proceedings, a common practice in such cases.

Luros asked the lawyers to select a referee acceptable to both sides. They agreed on two candidates, according to a transcript of the Dec. 17, 1999, hearing.

Then, Luros took the unusual step of rejecting both consensus choices after Parris pushed Arabian for the job, the transcript shows. Luros appointed Arabian, despite a strong objection from one of the defense lawyers.

Arabian “was totally inept” in the handling of another case, Glendale attorney Craig A. Holtz told Luros during the hearing, the transcript shows.

“He was unsuccessful in resolving discovery issues and case-management order issues and unsuccessful in settling the case. I don’t feel he is the best person available to handle this case,” Holtz said, according to the transcript.

Parris urged Luros to choose the retired state Supreme Court justice “just for vindication, if nothing else,” the transcript shows.

Luros appointed Arabian, saying he has the knowledge, experience and respect of the statewide legal community. “I have heard no reason why his name should be excluded,” Luros said, according to the transcript.

In an interview, Luros defended his selection of Arabian as the referee. “If they had said there was a conflict, I might well have considered other suggestions,” Luros said, adding that it was the first time he has assigned a referee.

Luros said he selected Arabian for his experience as a state Supreme Court justice and in handling complex matters. “If there was a conflict, he’s the kind of person I would expect to say there is a conflict,” he said.

Arabian still presides over pretrial aspects of the case and has yet to disclose to the lawyers his previous work with Parris. But it is easy to document in public court files.

Court documents show that Arabian and Parris were co-counsel in a slander suit until Oct. 22, 1999, when the state Supreme Court rejected their plea for an appeal. Two months later, on Dec. 17, 1999, Arabian was appointed by the court to referee pretrial disputes in a civil case in which Parris represents one side.