02-2458 Sphere Drake Ins. Ltd., v. All American Life Ins. Co.

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“Let us suppose that the district judge’s inferences are sound-that Jacks spent two months of equivalent fulltime service as counsel for Sphere Drake in an international insurance arbitration, four years before the unrelated arbitration with All American. Even if Jacks had been the umpire, this would not have implied ‘evident partiality.’ Indeed, Jacks could have served as a federal judge in this case without challenge on grounds of partiality, and the scope of disqualification under sec.10(a)(2) is considerably more confined than the rule applicable to judges.

“A federal judge would be disqualified on account of prior legal work ‘[w]here in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it’. 28 U.S.C. sec. 455(b)(2). Jacks fits none of these categories. The work he did for Sphere Drake was unrelated to the controversy with All American; no partner of Mayer Brown served ‘during such association’ (that is, while Jacks also was a partner) as a lawyer in this dispute between Sphere Drake and All American (indeed, Sphere Drake has been represented throughout by a firm other than Mayer Brown); and neither Jacks nor any lawyer at Mayer Brown is a ‘material witness’ in this case. Arbitration differs from adjudication, among many other ways, because the ‘appearance of partiality’ ground of disqualification for judges does not apply to arbitrators; only evident partiality, not appearances or risks, spoils an award. Still, a judge’s former representation of a litigant does not imply any need to disqualify under §455(a) because ‘his impartiality might reasonably be questioned.'”

Reversed.

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Easterbrook, J.