Resume reference comes back to haunt arbitrator

Retired Los Angeles County Judge Eli Chernow has been removed from an arbitration after he was accused of failing to disclose that he listed an attorney in one of his pending cases on an old resume.

The American Arbitration Association removed Chernow from the case last week after a request from a Geragos & Geragos attorney raised concerns about the former judge's ability to impartially adjudicate the case due to his relationship with Patricia Glaser of Glaser Weil Fink Howard Avchen & Shapiro LLP and actions during a case involving entertainer Chris Brown.

The case is similar to one that ended in 2013 with a 2nd District Court of Appeal decision involving a Chernow arbitration, in which the panel ruled the retired judge should have disclosed to parties in a property case that he listed the defense attorney in the matter, Robert Mangels of Jeffer Mangels Butler & Mitchell LLP, as a reference on his resume. Mt. Holyoke Homes LP v. Jeffer Mangels Butler & Mitchell LLP (2013) 219 Cal.App.4th 129.

The AAA decision on April 10 followed a motion by Geragos & Geragos to remove Chernow after it was discovered he listed Glaser, the opposing attorney, as a professional reference six years ago.

The reference, typical to many professional resumes, lists Glaser's name and phone number.

"The AAA's rule on disqualification provides that an arbitrator shall be subject to disqualification for partiality or lack of independence, inability or refusal to perform his or her duties with diligence and in good faith, and any grounds for disqualification provided by applicable law," AAA wrote in its removal letter.

In the underlying lawsuit, former Brown manager Michael Guirguis and Nitevision Management, represented by Glaser Weil, is seeking unpaid commissions from Brown. The matter was compelled to arbitration and Chernow was an independent contractor on AAA's panel. Guirguis v. Brown, BC624842 (L.A. Super. Ct., filed June 23, 2016).

Ben Meiselas, a Geragos attorney representing Brown in the proceedings, sought Chernow's removal because of what he said were concerns about the judge's ability to impartially adjudicate the case due to his relationship with Glaser.

Meiselas said Chernow "insinuated" himself into depositions, ate food provided by Glaser Weil, and joked with Glaser and other firm attorneys during a deposition on Feb. 3. He likened it to "showing up in a bench trial and the judge was eating food with opposing counsel."

Glaser Weil attorneys, who declined comment, said in opposition motions they requested Chernow be present at the deposition because opposing counsel was delaying Brown's deposition.

They said the motion for removal was in retaliation to unfavorable rulings toward respondents. The firm said the food was part of a potluck in which Brown and counsel was invited to participate, but Meiselas said he did not understand it to be so because he didn't have a chance to bring food.

Meiselas' motion to disqualify Chernow was denied.

Further investigation by Meiselas turned up the 2013 Court of Appeal opinion that overturned the Chernow arbitration. Searching through court archives, he found a version of the resume listing Glaser's name as a reference alongside Mangels.

He claimed Chernow "scrubbed" the names from his current resume.

Glaser Weil attorneys said the resume, which was originally found on the website of the National Academy of Distinguished Neutrals, was updated to remove the references in 2012.

They said "there was no effort to 'scrub' the NADN site of an earlier version of the resume following the Mt. Holyoke decision, rather, it was updated in 2012, a year before Mt. Holyoke was decided," according to their opposition motion.

Chernow could not be reached for comment Monday.

Prior to the arbitration, Chernow disclosed that he served as a mediator for two civil matters involving clients represented by Glaser, to which respondents did not object, according to Glaser Weil attorneys.

Chernow also defended his conduct during the potluck, writing in an email to the parties in February that he did not have a "private lunch (or any other meal) with any lawyer in this case on the day of the deposition or any other day. ... There was no discussion of the case."

Glaser declined to comment.

In a declaration in the Holyoke appellate case, Chernow said his contacts with Mangels did not stop him from impartially adjudicating the matter, nor was it a required disclosure under law.

"I have no relationship with Mr. Mangels other than as a neutral involved in mediation, adjudication, and discovery and other reference proceedings. The cases in which Mr. Mangels appeared before me occurred in the 1990s and early 2000s," wrote Chernow, who said he only listed Mangels because he was a highly regarded attorney.

The appellate court in 2013 ruled that it's the arbitrator's obligation to disclose public information. In overturning the arbitration award, an objective observer could conclude that an arbitrator listing a prominent litigator on his resume would be reluctant to rule against the lawyer.

"The question is not whether Judge Chernow actually was biased, but whether a reasonable person aware of the facts reasonably could entertain a doubt that he could be impartial in this case," the panel ruled.

Meiselas said his firm would not have hired Chernow had they known about the Glaser reference.

"Eli Chernow learned the exact opposite lesson that he should have from the Court of Appeal's decision and instead of heeding the advice of the Court of Appeal and disclosing his personal reference, he literally deleted that portion of his resume to intentionally conceal the relationship he had with a handful of prominent lawyers in the community, including Patty Glaser," Meiselas said.

In an opposition to the second removal request, Kerry Garvis Wright, a Glaser Weil attorney, said the removal request was done to stall the case.

"Given the disclosures of Ms. Glaser's more recent work with Arbitrator Chernow as a neutral, a 15-year-old reference to their professional relationship cannot be viewed reasonably to suggest a bias necessitating additional specified disclosure," according to the opposition motion.

Retired Los Angeles Judge James Steele, who works for Benchmark Resolution Group, said getting an arbitrator removed from a case is difficult because of the nature of the agreement.

"It's a creature of contract. An arbitrator has more power than a judge," Steele said.

"When you negotiate an agreement, you're accepting the potential risk that the arbitration may be wrong on the law and on the facts. In most cases, that will be insufficient to set aside the arbitration award," he said.