specially concurring:
Although I agree with the majority that the facts of the instant cause do not warrant vacature of the arbitration award, I write separately to record my departure from the majority’s analogy between the conduct of arbitrators and the conduct of judges or assistant public defenders. (222 Ill. App. 3d at 811-12.) In my view, the majority’s analogy is contrary to the precedent upon which the majority relies and is not relevant to disposition of the instant appeal.
The majority’s opinion relies upon the concurring opinion of Justice White in Commonwealth Coatings Corp. v. Continental Casualty Co. (1968), 393 U.S. 145, 21 L. Ed. 2d 301, 89 S. Ct. 337, with respect to the appropriate standard by which to gauge an arbitrator’s duty to disclose grounds that could reveal the arbitrator’s potential bias. In that concurring opinion, however, Justice White distinguished between judges and arbitrators, and specifically noted, “The Court does not decide today that arbitrators áre to be held to the standards of judicial decorum of Article III judges, or indeed of any judges. It is often because [arbitrators] are men of affairs, not apart from but of the marketplace, that they are effective in their adjudicatory function. [Citation.]” (393 U.S. at 150, 21 L. Ed. 2d at 305, 89 S. Ct. at 340 (White, J., concurring).) Similarly, in Merit Insurance Co. v. Leatherby Insurance Co. (7th Cir. 1983), 714 F.2d 673, upon which the majority also relies, the court emphasized the distinction between the appropriate standard of judicial conduct as compared to that applicable to arbitrators. 714 F.2d at 679, 682; see also Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds (2d Cir. 1984), 748 F.2d 79; Toyota of Berkeley v. Automobile Salesmen’s Union, Local 1095 (9th Cir. 1987), 834 F.2d 751.
The majority’s analogy between judges and arbitrators contradicts this precedent. In addition, the majority’s analysis may impart a predisposition with respect to evaluation of judicial conduct, as distinguished from conduct of an arbitrator, under circumstances similar to those presented herein. I decline to adopt the majority’s analogy, and indicate no opinion respecting standards to be applied in the evaluation of judicial conduct.
The majority’s references to standards of judicial conduct, judicial evaluations by local bar associations, friendships between members of the bench and bar, and conflict of interest of the public defender’s office are superfluous to the question posed in the instant cause. The heart of the issue in the case at bar is whether the arbitrator’s failure to disclose his representation of a nonparty in a separate lawsuit against an insured of State Farm created an appearance of bias sufficient to vacate the arbitration award. Our courts have adopted the Federal standard, drawn from Justice White’s concurrence in Commonwealth Coatings, with respect to vacature of arbitration awards because of an arbitrator’s appearance of bias. See Calabrese v. State Farm Mutual Automobile Insurance Co. (1989), 187 Ill. App. 3d 349, 543 N.E.2d 215; Grane v. Grane (1985), 130 Ill. App. 3d 332, 473 N.E.2d 1366; Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 378 N.E.2d 558; see also Sarnoff v. De Graf Brothers, Inc. (1990), 196 Ill. App. 3d 535, 554 N.E.2d 335; J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 456 N.E.2d 889.
Under the Federal court’s jurisprudence, an appearance of bias is sufficient to set aside an arbitrator’s award where the record shows that the relationship creating the appearance of bias “was so intimate — personally, socially, professionally, or financially — as to cast serious doubt on [the arbitrator’s] impartiality.” (Merit, 714 F.2d at 680.) In order to set aside the arbitrator’s award, the “circumstances [must be] such that a man of average probity might reasonably be suspected of partiality” and “must be powerfully suggestive of bias.” (Merit, 714 F.2d at 681.) Courts have examined “(1) the financial interest the arbitrator may have in the proceeding; (2) the directness and nature of the alleged relationship between the arbitrator and a party to the proceeding; and (3) whether the relationship existed at the same time as the challenged proceeding. [Citation.]” (Sun Refining & Marketing Co. v. Statheros Shipping Corp. (S.D.N.Y. 1991), 761 F. Supp. 293, 299.) The courts “pragmatically ‘employ[ ] a case-by-case approach in preference to dogmatic rigidity.’ ” Sun Refining, 761 F. Supp. at 298, quoting Andros Compania Maritima, S.A. v. Marc Rich & Co. (2d Cir. 1978), 579 F.2d 691, 700.
Applying this precedent to the instant cause, the record discloses insufficient evidence to conclude that the arbitrator’s conduct was adequate to set aside his award. Plaintiff points to no more than the circumstance that the arbitrator, in his separate capacity as an attorney in private practice, had a pending lawsuit against an insured of State Farm. There is nothing in the record to reveal that the arbitrator had any contact, whether professional, business, or social, with the attorney representing State Farm in the arbitration proceeding. Plaintiff does not contend that the arbitration proceeding was unfair or improper, or that the arbitrator appeared partial or biased in his handling of the arbitration hearing. Moreover, plaintiff is unable to demonstrate that the arbitration award was improper or irregular. In light of all of these circumstances, I agree with the majority’s determination that the facts of record in the instant cause did not warrant the vacature of the arbitrator’s award because of an appearance of bias.
For these reasons, I specially concur.