Robert J. Herrera v. Santangelo Law Offices, P.C.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 11, 2022

2022COA93

No. 20CA2105, Herrera v. Santangelo Law Offices, P.C. — ADR
— Arbitration — Colorado Uniform Arbitration Act — Vacating
Award — Sanctions

A division of the court of appeals examines whether an

arbitrator had authority to sanction an arbitrating party’s attorney

who was not himself a party to the arbitration agreement that

bound his client. The division first determines that, as a nonparty

to the arbitration agreement, the attorney was not bound to his

client’s arbitration obligation by ordinary principles of contract or

agency law under N.A. Rugby Union LLC v. U.S. of Am. Rugby

Football Union, 2019 CO 56. The division thus concludes that the

arbitrator did not possess any authority to sanction the attorney by

virtue of his client’s arbitration obligation.
The division then concludes that the arbitrator did not

otherwise possess authority to sanction the attorney, either

inherently as a quasi-judicial tribunal or statutorily under C.R.C.P.

11; section 13-17-102, C.R.S. 2021; or the provisions of the

Colorado Uniform Arbitration Act, sections 13-22-201 to -230,

C.R.S. 2021.
COLORADO COURT OF APPEALS 2022COA93

Court of Appeals No. 20CA2105
Larimer County District Court No. 19CV30116
Honorable Daniel M. McDonald, Judge

Robert J. Herrera,

Plaintiff-Appellant,

v.

Santangelo Law Offices, P.C.,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE KUHN
Navarro and Lipinsky, JJ., concur

Announced August 11, 2022

Gordon & Rees LLP, John M. Palmeri, John R. Mann, Denver, Colorado, for
Plaintiff-Appellant

Ringenberg & Beller, P.C., Richard D. Beller, Fort Collins, Colorado, for
Defendant-Appellee
¶1 In an arbitration between Santangelo Law Offices, P.C., and

Touchstone Home Health LLC, the arbitrator sanctioned

Touchstone’s arbitration counsel, Robert J. Herrera, after Herrera

fraudulently obtained Santangelo’s signature on a settlement

agreement and told the arbitrator a known falsehood — that the

parties had settled. Invoking C.R.C.P. 11 and section 13-17-102,

C.R.S. 2021, the arbitrator awarded Santangelo nearly $150,000

against Herrera personally for attorney fees Santangelo incurred in

responding to Herrera’s falsehood and in pursuing sanctions

against him. The district court confirmed this award.

¶2 On appeal, Herrera contends that the arbitrator lacked the

authority to sanction him personally. We agree and reverse

accordingly.

I. Background

¶3 Touchstone contracted for Santangelo’s legal services, entering

into an Agreement for Legal Services (the Touchstone-Santangelo

fee agreement) containing an arbitration clause:

The parties agree to submit any controversy or
claim in any way arising from this Agreement
or the parties’ relationship to confidential
binding arbitration . . . by a single attorney.
Such arbitration shall be conducted pursuant

1
to the Commercial Arbitration Rules (CARs) of
the American Arbitration Association (AAA)
. . . .1

Herrera did not sign the fee agreement in either a personal or

representative capacity, nor was he even counsel for Touchstone

when it was executed.

¶4 Years later, when Touchstone and Santangelo’s relationship

ended, Santangelo sought to collect its unpaid legal fees and

demanded arbitration pursuant to the Touchstone-Santangelo fee

agreement. Herrera entered his appearance in the arbitration as

Touchstone’s sole attorney. The parties participated in a

preliminary hearing. The arbitrator memorialized that hearing in a

report and scheduling order, which stated that “[t]he Colorado

Rules of Civil Procedure shall govern [the arbitration] and the laws

of the State of Colorado shall apply.”

¶5 Then, however, “something very strange happened.” In re

Touchstone Home Health LLC, 572 B.R. 255, 264 (Bankr. D. Colo.

2017). Soon after the parties rejected opposing settlement offers,

1The parties agreed to several modifications of the Commercial
Arbitration Rules not relevant here.

2
Herrera asserted in an email to the arbitrator that the parties had

reached a settlement, but

[Santangelo] disputed this, asserting that
[Touchstone] had engaged in a fanciful scheme
to fabricate a settlement by using a fake FedEx
driver to obtain a signature from [Santangelo]
on a delivery slip [in exchange for a box
containing approximately 5,000 one-dollar
bills], which signature was then superimposed
or forged on a settlement agreement that
[Santangelo] had not even seen.

Id.

¶6 In response, Santangelo moved for sanctions against

Touchstone and Herrera in his personal capacity. Herrera

responded by disclaiming any obligation to arbitrate his individual

liability for sanctions and filing a court action for declaratory relief

establishing that the arbitrator lacked the authority to enter

sanctions against him.

¶7 Following hearings on the purported settlement and

Santangelo’s motion, the arbitrator found that Herrera admitted he

knew that (1) Santangelo’s signature on the purported settlement

agreement was obtained and placed on the document through

deception; (2) this signature formed the basis for his assertion to

the arbitrator that the parties had settled; and (3) his email to the

3
arbitrator was therefore without merit and went uncorrected even

through the arbitrator’s initial hearing on the purported

settlement.2 The arbitrator also found that Herrera was aware that

the Colorado Rules of Civil Procedure and Colorado law generally

would apply to the arbitration because, at the preliminary hearing,

he had agreed on behalf of Touchstone that those authorities would

govern the arbitration.

¶8 The arbitrator then determined that the issue of sanctions

against Herrera was arbitrable, that Rule 11 and section 13-17-102

governed his consideration of sanctions, that Herrera’s conduct was

sanctionable under both, and that Santangelo reasonably incurred

$148,184.15 in fees and expenses in both responding to Herrera’s

false assertion and moving for sanctions against him. The

arbitrator awarded this amount to Santangelo and ordered Herrera

to pay it personally. Touchstone and Santangelo later settled their

2 Herrera later stipulated to many of these facts in his agreement
with Colorado’s Office of Attorney Regulation Counsel to a
three-year suspension of his license to practice law for this and
other misconduct. People v. Herrera, (Colo. O.P.D.J. No. 18PDJ026,
Nov. 29, 2018).

4
fee dispute but did not resolve the arbitrator’s award of sanctions

against Herrera individually.

¶9 In his district court suit, Herrera moved to vacate the

arbitrator’s award of sanctions against him pursuant to section

13-22-223(1), C.R.S. 2021. The court denied Herrera’s motion and

instead confirmed the award under section 13-22-223(4).

II. Analysis

¶ 10 Herrera contends the award of sanctions must be vacated

because (1) he did not agree to arbitrate any issues of attorney

sanctions, either individually in the arbitration hearing or as a

nonparty bound to the Touchstone-Santangelo fee agreement; and

(2) the arbitrator had no authority to sanction the attorney of an

arbitrating party absent an agreement granting the arbitrator such

authority. We agree with both contentions.

A. Standard of Review

¶ 11 “Colorado law favors the resolution of disputes through

arbitration.” J.A. Walker Co. v. Cambria Corp., 159 P.3d 126, 128

(Colo. 2007). This preference is embedded in both the Colorado

Constitution and the Colorado Uniform Arbitration Act (CUAA).

§§ 13-22-201 to -230, C.R.S. 2021; Johnson-Linzy v. Conifer Care

5
Communities A, LLC, 2020 COA 88, ¶ 16 (citing Colo. Const. art.

XVIII, § 3).

¶ 12 “To facilitate confidence in the finality of arbitration awards

and discourage piecemeal litigation, the [CUAA] strictly limits the

role of the courts in reviewing awards.” Magenis v. Bruner, 187

P.3d 1222, 1224 (Colo. App. 2008). Thus, “a court may decline to

confirm an arbitration award only in limited circumstances.”

Barrett v. Inv. Mgmt. Consultants, Ltd., 190 P.3d 800, 802 (Colo.

App. 2008); see also Treadwell v. Vill. Homes of Colo., Inc., 222 P.3d

398, 401 (Colo. App. 2009) (“These limited circumstances . . . do not

include the merits of the award. Rather, they involve ‘specific

instances of outrageous [arbitral] conduct’ and ‘egregious

departures from the parties’ agreed-upon arbitration.’” (quoting Hall

Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586 (2008))).

¶ 13 This limited scope of judicial review springs from the general

principle that “[a]rbitration is ‘a matter of contract between the

parties; it is a way to resolve those disputes — but only those

disputes — that the parties have agreed to submit to arbitration.’”

See Johnson-Linzy, ¶ 11 (quoting First Options of Chi., Inc. v.

Kaplan, 514 U.S. 938, 943 (1995)). And because arbitration is a

6
matter of contract, “[t]he powers of an arbitrator derive from the

arbitration agreement between the parties and are strictly defined

by the terms of that agreement.” Magenis, 187 P.3d at 1224 (citing

Coors Brewing Co. v. Cabo, 114 P.3d 60, 64 (Colo. App. 2004)).

That being said, the CUAA provides that it “shall govern” arbitration

agreements, § 13-22-203, C.R.S. 2021, and “[p]arties may waive or

vary the effect of the CUAA ‘to the extent permitted by law,’”

Johnson-Linzy, ¶ 16 (quoting § 13-22-204(1), C.R.S. 2021).

¶ 14 As relevant here, the CUAA states that “the court shall vacate

an award made in the arbitration proceeding if it finds that . . . [a]n

arbitrator exceeded the arbitrator’s powers . . . [or] [t]here was no

agreement to arbitrate . . . .” § 13-22-223(1)(d), (e). It also provides

that “[t]he court shall decide whether an agreement to arbitrate

exists or a controversy is subject to an agreement to arbitrate.”

§ 13-22-206(2), C.R.S. 2021.

¶ 15 We thus review de novo both whether an enforceable

agreement to arbitrate exists and, if so, the scope of that agreement.

Moffett v. Life Care Ctrs. of Am., 219 P.3d 1068, 1072 (Colo. 2009);

N.A. Rugby Union LLC v. U.S. of Am. Rugby Football Union, 2019 CO

56, ¶ 19. We also review de novo whether an arbitrator exceeded

7
their powers.3 See Treadwell, 222 P.3d at 400 (“Courts

independently review whether an arbitrator had power to resolve a

dispute.”).

¶ 16 Lastly, the interpretation of the CUAA also presents a question

of law we review de novo. In re Marriage of Roth, 2017 COA 45,

¶ 15. “When interpreting the CUAA, ‘[w]e begin by analyzing the

text of the CUAA, giving its words their ordinary and commonly-

understood meanings.’” E-21 Eng’g, Inc. v. Steve Stock & Assocs.,

Inc., 252 P.3d 36, 39 (Colo. App. 2010) (quoting Ingold v.

AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116, 120 (Colo. 2007)).

We “striv[e] to give effect to the General Assembly’s intent and

chosen legislative scheme.” Sooper Credit Union v. Sholar Grp.

Architects, P.C., 113 P.3d 768, 771 (Colo. 2005).

3 Santangelo argues that we review the arbitrator’s conclusion that
the issue of sanctions was arbitrable for a “manifest disregard of the
law.” We disagree. See Johnson-Linzy v. Conifer Care Communities
A, LLC, 2020 COA 88, ¶ 16 (“To deviate from [section 13-22-206(2),
C.R.S. 2021,] . . . ‘the law requires that parties must plainly and
unambiguously empower an arbiter to decide arbitrability and that
they must clearly and knowingly assent to terms incorporated by
reference.’” (quoting Taubman Cherry Creek Shopping Ctr., LLC v.
Neiman-Marcus Grp., Inc., 251 P.3d 1091, 1095 (Colo. App. 2010))).

8
B. Herrera Did Not Agree with
Santangelo to Arbitrate Sanctions

¶ 17 Santangelo argues that the arbitrator had the authority to

sanction Herrera because either (1) the arbitration language in the

Touchstone-Santangelo fee agreement bound Herrera; or (2) Herrera

personally agreed that the arbitrator possessed the authority to

sanction the parties’ counsel individually. We are not persuaded.

1. The Arbitration Language of the Touchstone-Santangelo
Fee Agreement Did Not Bind Herrera

¶ 18 Santangelo does not dispute that the arbitration language of

its fee agreement with Touchstone by its terms bound only the

“parties” — and that Herrera was not a “party.” The arbitrator

agreed, consistently finding that, throughout the arbitration,

Herrera was acting as counsel for Touchstone and not in his

individual capacity. Nonetheless, Santangelo contends that the

Touchstone-Santangelo fee agreement empowered the arbitrator to

sanction the parties’ attorneys, and that Herrera was bound to it

under principles of contract and agency law. We disagree with its

second contention and need not reach its first.

¶ 19 As a general rule, “when the requirement to arbitrate is

created by an agreement, it can be invoked only by a signatory of

9
the agreement, and only against another signatory.” Smith v.

Multi-Fin. Sec. Corp., 171 P.3d 1267, 1272 (Colo. App. 2007).

However, in Rugby Union, ¶¶ 20-22, the supreme court adopted

seven exceptions, born of ordinary principles of contract and agency

law, that may bind a nonparty to an arbitration agreement:

(1) incorporation of an arbitration provision by reference in another

agreement; (2) the nonsignatory’s assumption of the arbitration

obligation; (3) agency; (4) veil-piercing/alter ego; (5) equitable

estoppel; (6) successor-in-interest; and (7) third-party beneficiary.

¶ 20 Santangelo first argues that Herrera assumed Touchstone’s

obligation to arbitrate. See id. (citing Thomson-CSF, S.A. v. Am. Arb.

Ass’n, 64 F.3d 773, 777 (2d Cir. 1995)).4 According to Santangelo,

Herrera did so by (1) entering his appearance as counsel for

Touchstone and (2) agreeing — on Touchstone’s behalf in the

preliminary hearing before the issue of sanctions arose — that “[t]he

4 The parties have not cited — nor have we found — a Colorado case
applying this exception. For guidance, we look to federal cases
interpreting the Federal Arbitration Act. See E-21 Eng’g, Inc. v.
Steve Stock & Assocs., Inc., 252 P.3d 36, 39 (Colo. App. 2010) (citing
Ingold v. AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116, 120 (Colo.
2007)).

10
Colorado Rules of Civil Procedure shall govern [the arbitration] and

the laws of the State of Colorado shall apply.”

¶ 21 We conclude that Herrera did not “manifest an intention to be

bound” by the Touchstone-Santangelo fee agreement through his

conduct. See Thomson-CSF, S.A., 64 F.3d at 777; In re Arb.

Between Promotora da Navegacion, S.A. & Sea Containers, Ltd., 131

F. Supp. 2d 412, 417 (S.D.N.Y. 2000) (“[T]he fundamental question

. . . is whether [the nonsignatory] evidenced — expressly or

implicitly — an unambiguous intent to arbitrate the submitted

dispute.”). Rather, Herrera “explicitly disavowed any obligations

arising out of it” from the moment Santangelo filed its motion for

sanctions against Herrera — even going as far as filing a court

action seeking a declaration that the arbitrator lacked the authority

to impose sanctions against him. See Thomson-CSF, 64 F.3d at

777; Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1103-05

(2d Cir. 1991) (concluding that a nonsignatory “manifested a clear

intent” to arbitrate because, in part, nonsignatory did not, at any

point before or during the arbitration, object to the process, refuse

to arbitrate, or make any attempt to seek judicial relief); Henry v.

Imbruce, 177 A.3d 1168, 1184 (Conn. App. Ct. 2017) (“The

11
[nonsignatory’s] conduct belies his claim that he is not bound by

the arbitration. . . . [H]e repeatedly represented himself both at the

trial court and in the arbitration as involved in and bound by the

arbitration . . . [and he] did not argue that he was not a party until

after the arbitrator rendered her award.”); see also Invista S.À.R.L.

v. Rhodia, SA, 625 F.3d 75, 85 (3d Cir. 2010) (citing Thomson-CSF

in background for the proposition that “non-signatories may

assume the obligations contained in an arbitration clause where

there is a sufficiently close relationship to justify doing so, and the

circumstances warrant that result,” but ultimately ruling on other

grounds).

¶ 22 We also reject Santangelo’s contention that Herrera is

equitably estopped from asserting that he is not bound by

Touchstone’s arbitration obligation. He has not “knowingly

exploited” the Touchstone-Santangelo fee agreement by claiming

direct benefits from, enjoying rights under, or seeking to enforce

other provisions of it for his own benefit. See Rugby Union, ¶ 38.

Any benefits Herrera received because of his representation of

Touchstone in the arbitration are simply too indirect to estop him

12
from disclaiming the arbitrator’s authority to impose sanctions

against him under Touchstone’s arbitration obligation.

¶ 23 Santangelo advances no other theory for binding Herrera to

the Touchstone-Santangelo fee agreement, and we see no other

Rugby Union exception as applicable under the facts of this case.

See Rugby Union, ¶ 31 (“[T]he signatory must establish one of the

recognized legal or equitable bases to compel the nonsignatory to

arbitrate.”); compare Bak v. MCL Fin. Grp., Inc., 88 Cal. Rptr. 3d

800, 806 (Ct. App. 2009) (upholding arbitrator’s sanctions award

against party’s attorney because, in part, the attorney was the

party’s agent), and Bigge Crane & Rigging Co. v. Docutel Corp., 371

F. Supp. 240, 246 (E.D.N.Y. 1973) (upholding arbitrator’s sanctions

award against nonparty principal of agent-signatory to an

arbitration agreement), with Rugby Union, ¶ 36 (“The agency

exception to the general principle that a party cannot be required to

arbitrate any dispute that it has not agreed to arbitrate is premised

on traditional principles of agency law. Under those principles, an

agent may bind a principal to a contract. A principal, however,

cannot bind an agent.”). Other cases Santangelo cites for binding

13
Herrera are inapposite.5 See First Pres. Cap. v. Smith Barney, Harris

Upham & Co., 939 F. Supp. 1559, 1567 (S.D. Fla. 1996) (motion for

sanctions directed against party to arbitration agreement); Pisciotta

v. Shearson Lehman Bros., 629 A.2d 520, 524 (D.C. 1993) (same).

¶ 24 We therefore conclude that the Touchstone-Santangelo fee

agreement did not bind Herrera to the arbitrator’s authority

because Herrera was a nonparty to that agreement and did not fall

within any of the Rugby Union exceptions. See MCR of Am., Inc. v.

Greene, 811 A.2d 331, 343-44 (Md. Ct. Spec. App. 2002) (vacating

sanctions award against a party’s attorney because attorney was

not bound by the parties’ arbitration agreement).

5 To the extent out-of-state cases have concluded that the terms of
the parties’ arbitration agreement can authorize an arbitrator to
sanction a party’s attorney without some basis existing in contract
or agency law to bind the attorney to that agreement, we disagree
with their conclusions. See Polin v. Kellwood Co., 103 F. Supp. 2d
238, 264-67 (S.D.N.Y. 2000) (Polin I) (reasoning, in part, that
arbitration panel had authority to sanction nonparty attorney
because the parties’ agreement “g[ave] the panel broad remedial
power, and provid[ed] that the panel ‘may grant any remedy or relief
that the arbitrator deems just and equitable, including any remedy
or relief that would have been available to the parties had the
matter been heard in court’”), aff’d, 34 F. App’x 406 (2d Cir. 2002).

14
2. Herrera Did Not Personally Agree to
the Arbitrator’s Authority to Impose Sanctions

¶ 25 We also reject Santangelo’s argument that Herrera personally

agreed to arbitrate attorney-sanctions disputes.

¶ 26 On this issue, the district court concluded that Herrera

“voluntarily agreed to the arbitrator’s authority under Colorado law

twice” when he (1) entered his appearance as counsel in the

arbitration and (2) expressly agreed at the preliminary hearing that

Colorado law and the Rules of Civil Procedure would apply to the

arbitration proceedings. In so agreeing, the court ruled that

Herrera “bound not only his client but also himself to the rule of the

arbitrator,” and, “[t]herefore, he (like his client) could be sanctioned”

under Rule 11 or section 13-17-102.

¶ 27 As an initial matter, Santangelo appears to contend that the

trial court found that Herrera agreed that Colorado law applied to

him individually — as well as in a representative capacity. To the

extent the court did so, we find no record support for this finding.

See Albright v. McDermond, 14 P.3d 318, 322 (Colo. 2000) (“In

reviewing a breach of contract case, we defer to the trial court’s

findings of fact if the record supports them, and we review its

15
conclusions of law de novo.”). Rather, the arbitrator’s report merely

memorialized that Colorado law applied to the proceedings; the

arbitrator later found that Herrera only agreed to the application of

Colorado law on Touchstone’s behalf; and, in determining the

proper parties for the sanctions motion, the arbitrator specifically

stated that sanctions apply to Herrera “by virtue of his role as

counsel for Touchstone and not in his individual capacity.”

¶ 28 Having rejected Santangelo’s contention, we do not see

Herrera’s appearance as counsel for Touchstone, his agreement on

behalf of Touchstone that Colorado law would apply to the

arbitration, or both, as forming an enforceable agreement to

arbitrate. See City & Cnty. of Denver v. Dist. Ct., 939 P.2d 1353,

1361 (Colo. 1997) (“As a general rule, courts should follow state law

principles governing contract formation to determine whether the

parties agreed to submit an issue to alternative dispute

resolution.”); § 13-22-206(1) (“An agreement contained in a record

to submit to arbitration any existing or subsequent controversy

arising between the parties to the agreement is valid, enforceable,

and irrevocable . . . .”); see also E-21 Eng’g, 252 P.3d at 39

(“Although the CUAA requires that an arbitration agreement be

16
‘contained in a record,’ it does not specifically require that the

written instrument be signed by either or both parties.”). Neither of

these actions satisfies the elements of a contract formed between

Herrera and Santangelo to arbitrate the issue of sanctions. See

Lane v. Urgitus, 145 P.3d 672, 677 (Colo. 2006) (“In determining

whether the parties have agreed to submit the issue in question to

arbitration, we follow state law principles governing contract

formation.”).

¶ 29 In summary, we conclude that no agreement bound Herrera to

arbitrate the issue of sanctions against him in an individual

capacity.

¶ 30 Nonetheless, this is not the end of our inquiry. While “[t]he

powers of an arbitrator derive from the arbitration agreement,”

Magenis, 187 P.3d at 1224, federal cases have entertained the

possibility — which Santangelo urges us to adopt — that,

notwithstanding the lack of an agreement binding nonparty

attorneys, arbitrators possess “inherent authority” to sanction

attorneys appearing before them as a part of their “obligation to

protect the forum.” InterChem Asia 2000 Pte. Ltd. v. Oceana

Petrochemicals AG, 373 F. Supp. 2d 340, 358 (S.D.N.Y. 2005)

17
(quoting Polin v. Kellwood Co., 132 F. Supp. 2d 126, 134 (S.D.N.Y.

2000) (Polin II)).

¶ 31 We thus turn to examine whether the arbitrator has authority

to sanction an arbitrating party’s attorney, regardless of whether

the attorney is personally subject to an agreement to arbitrate the

issue of sanctions.

C. Arbitrators Have No Inherent Authority
to Sanction a Party’s Attorney

¶ 32 Santangelo argues, as it did before the arbitrator, that the

arbitrator has the authority to craft appropriate sanctions for an

attorney’s misconduct due to the tribunal’s inherent power to

regulate the proceeding before it. We disagree.

¶ 33 Santangelo is correct regarding the well-settled principle that

“[c]ourts have inherent authority to issue orders that are necessary

for the performance of judicial functions.” People v. McGlotten, 134

P.3d 487, 489 (Colo. App. 2005); see Halaby, McCrea & Cross v.

Hoffman, 831 P.2d 902, 907 (Colo. 1992) (“The inherent powers

which courts possess consist of all powers reasonably required to

enable a court to efficiently perform its judicial functions, to protect

18
its dignity, independence, and integrity, and to make its lawful

actions effective.”).

¶ 34 However, it does not follow that, because judicial tribunals

possess inherent authority to regulate the proceedings before them,

all quasi-judicial tribunals possess the same authority. After all, the

powers of an arbitrator arise primarily from contract, while those of

courts arise from the judiciary’s constitutional role, statutory

authority, and historical practice. See Chambers v. NASCO, Inc.,

501 U.S. 32, 47 (1991); InterChem Asia, 373 F. Supp. 2d at 358

(concluding that arbitrators do not have inherent sanction authority

because “finding that the Arbitrator had inherent authority to

sanction [an arbitrating party’s attorney] would directly contradict

the principle that an arbitrator’s authority is circumscribed by the

agreement of the parties”); c.f. Munich Reinsurance Am., Inc. v. ACE

Prop. & Cas. Ins. Co., 500 F. Supp. 2d 272, 275-76 (S.D.N.Y. 2007)

(concluding that disqualification of an attorney for an alleged

conflict of interest was not within arbitrator’s authority to decide as

that function “has historically been a matter for judges and not

arbitrators because it requires an application of substantive state

19
law regarding the legal profession and results in an enforceable

judicial order”).

¶ 35 Moreover, we agree with Herrera that no Colorado statute or

rule of civil procedure confers on arbitrators the authority to

sanction a party’s attorney. See Seagate Tech., LLC v. W. Digit.

Corp., 854 N.W.2d 750, 761 (Minn. 2014) (noting that arbitrators

may have authority conferred by the legislature). As he argues,

Rule 11 and section 13-17-102 only empower “courts” to sanction

attorneys, so absent an arbitration agreement incorporating these

provisions to which Herrera was bound, they provide no

independent, standalone authority for an arbitrator to sanction a

party’s attorney. Compare Halaby, 831 P.2d at 907 (interpreting a

previous version of C.R.C.P. 107 that defined “contempt” to include

“[m]isbehavior of any person in the presence of . . . an arbitrator

while sitting on arbitration” and stating: “Thus, a judge, a master

and an arbitrator all have clear authority to impose sanctions for

conduct which interferes with the functions of the court”), with In re

Marriage of Leverett, 2012 COA 69, ¶ 11 (interpreting the current

Rule 107 and noting that, because “arbitrator” is not included in

20
the definition of “court,” violation of an arbitrator’s order is not

“contempt”).

¶ 36 Further, we agree with Herrera that no provision of the CUAA

explicitly confers on arbitrators the authority to sanction a party’s

attorney. The CUAA does grant arbitrators specific statutory

powers that can be exercised in arbitration proceedings. See

§ 13-22-215(1), C.R.S. 2021 (noting that the CUAA confers certain

authority upon the arbitrator). For example, arbitrators can issue

subpoenas, authorize depositions, and issue protective orders. See,

e.g., § 13-22-217, C.R.S. 2021. But the legislature has also

specifically limited the bounds of these powers. See, e.g.,

§ 13-22-217(1) (subpoenas must be enforced via court order);

§ 13-22-217(4) (arbitrators do not have the power of contempt);

§ 13-22-217(7) (granting courts the power to enforce subpoenas and

discovery-related orders issued by arbitrators). And while the CUAA

authorizes arbitrators to award “reasonable attorney fees . . . if such

an award is authorized by law in a civil action involving the same

claim or by the agreement of the parties to the arbitration

proceeding,” § 13-22-221(1), C.R.S. 2021, we do not see this

authorization as broad or express enough to apply to an arbitrating

21
party’s attorney. Most importantly, nowhere else in these

provisions has the General Assembly imbued arbitrators with

general powers, particularly against nonparties.6

¶ 37 Lastly, we acknowledge a looming concern Santangelo raises

in its briefing — that if arbitrators are not permitted to control and

protect the arbitration proceedings through the sanction power,

then attorneys may be more likely to commit misconduct in

arbitration. See Polin II, 132 F. Supp. 2d at 134 (“If an attorney

were free to disregard and flaunt the authority of the arbitral forum,

[the] benefits [of arbitration] would be lost; the interest of . . . courts

in following the . . . policy of promoting arbitration as a means of

resolving disputes would be frustrated.”); see also Positive Software

Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460-63 (5th

Cir. 2010) (concluding that courts lack inherent authority to

sanction attorneys for their conduct during arbitration); Teamsters

6 To the contrary, in enacting the CUAA, the General Assembly
declined to enact language contained in the Uniform Arbitration Act
that would have authorized arbitrators to “order such remedies as
the arbitrator considers just and appropriate under the
circumstances of the arbitration proceeding.” Compare Unif. Arb.
Act § 21(c) (Unif. L. Comm’n 2000) (containing quoted language),
with § 13-22-221, C.R.S. 2021 (containing no such language).

22
Loc. Union No. 430 v. Cement Express, Inc., 841 F.2d 66, 70 (3d Cir.

1988) (concluding that federal courts lack authority under F.R.C.P.

11 to sanction attorneys for their submissions to arbitration).

¶ 38 But even if valid, other safeguards alleviate his concern. First,

going forward arbitrators could ask attorneys appearing before

them to explicitly and personally agree to the arbitrator’s authority

to sanction the lawyers. Second, as happened here, attorney

misconduct in arbitration is still subject to regulation by the

Colorado Office of Attorney Regulation Counsel. But more

importantly in our view, attorneys committing misconduct in

arbitration could open the door to the arbitrator sanctioning their

clients. See, e.g., Certain Underwriters at Lloyd’s London v.

Argonaut Ins. Co., 264 F. Supp. 2d 926, 944 (N.D. Cal. 2003)

(noting that parties may agree by arbitration contract to confer

sanction power on the arbitrator); Commercial Arbitration Rules

and Mediation Procedures R-58(a) (Am. Arb. Ass’n, amended and

effective Oct. 1, 2013) (“The arbitrator may, upon a party’s request,

order appropriate sanctions where a party fails to comply with its

obligations under these rules or with an order of the arbitrator.”);

see also § 13-22-221(1). Either way, we don’t see the absence of

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arbitrator authority to sanction a party’s attorney as opening a

Pandora’s box of attorney misconduct in arbitration.

¶ 39 Importantly, too, there are significant concerns counseling

against concluding that arbitrators have authority to sanction

nonparty attorneys absent an agreement to that effect. Here,

Herrera claims it would be futile for him to challenge the merits of

the arbitrator’s sanctions award — his factual findings or

application of law — because, Herrera argues, the scope of judicial

review of that award is so narrow. See Cabo, 114 P.3d at 66

(“[A]rbitration awards are not open to review on the merits.”). That

may be so in Herrera’s case, but even if not,

[w]e are . . . [still] not inclined to accept a
broadening of the powers of an arbitrator while
our authority to review the exercise of those
powers remains narrow. To hold otherwise
would grant arbitrators greater power to
sanction attorneys by awarding arbitration or
attorney’s fees than the courts presently enjoy,
because the power of arbitrators to do so is
less reviewable. That would be an unfortunate
result, given that arbitrators are not judges
and arbitrations are not trials. If arbitrators’
powers are to be so expanded, it should be
done expressly by rule or statute, not
inferentially by this Court.

Greene, 811 A.2d at 344.

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¶ 40 Ultimately, arbitration in Colorado is largely a function of

statutory and contract law, and an arbitrator can only act within

the scope of an agreement between the parties, with authority

granted by that agreement or by law. We conclude that arbitrators

have no authority — either inherent to the arbitration tribunal or

conferred by Rule 11, section 13-17-102, or the CUAA — to

sanction a party’s attorney absent an agreement that provides

otherwise, and to which that attorney is bound.

III. Conclusion

¶ 41 We conclude that the arbitrator exceeded his authority in

sanctioning Herrera personally, as (1) Herrera was not bound to any

agreement to arbitrate the issue of sanctions against himself; and

(2) the arbitrator otherwise possessed no authority to do so. The

district court therefore erred in denying Herrera’s motion to vacate

and instead confirming the award. We reverse the district court’s

judgment accordingly and remand with instructions to vacate the

arbitration award against Herrera.

JUDGE NAVARRO and JUDGE LIPINSKY concur.

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