252 Conn. 416, 747 A.2d 1017 (2000)
This case raises several significant issues on appeal. First, as a matter of first impression for this court, we must determine the proper standard of review that a trial court should exercise in reviewing an arbitration decision involving the interpretation and application of rule 5.6 of the Rules of Professional Conduct. We conclude that in such a case, de novo review, rather than the traditional, more deferential review afforded to arbitration decisions, is proper. Second, we must determine whether a forfeiture upon competition provision in an employment agreement, as applied to postemployment benefits that become available to former law firm partners without regard to whether those partners fully retire from the practice of law, violates the public policy embodied in rule 5.6. We conclude that, for the purposes of eligibility to collect such benefits, public policy does not require the absolute cessation of the practice of law as a condition of retirement. Finally, we must determine whether an arbitrator violated public policy by invoking a savings clause provision in an employment agreement in order to preserve a forfeiture upon competition provision that otherwise would have violated the public policy underlying rule 5.6. We conclude that such action, when undertaken pursuant to a valid arbitration agreement, does not violate public policy.
The following facts are pertinent to this appeal. The plaintiff, Samuel V. Schoonmaker III, is a former partner in the defendant law firm of Cummings and Lockwood (firm). He was also a stockholder in the firm’s parent corporation, Cummings and Lockwood of Connecticut, P.C., which also is a defendant in this action. As both a stockholder and partner, the plaintiff was subject to the defendants’ partnership agreement and employment agreement (agreements), both of which were dated January 1, 1993. Both agreements provided for the distribution of postemployment compensation following an employee’s retirement from the firm, and both provided that the parties would arbitrate “[a]ny controversy or claim arising out of or relating to this Agreement. . . . ”
The agreements contained nearly identical provisions that provided for the distribution of two different categories of postdeparture benefits. The basic benefit, referred to as the “lx,” is payable upon retirement of an employee or stockholder who has been a partner of the firm for at least four years. The supplemental, or “2x” benefit, is payable upon retirement of an employee who has at least twenty years of service with the firm, either as an associate or a partner, and is payable only after the retiring attorney reaches the age of sixty, or has become physically or mentally incapable of continuing to practice law. The sum of the lx and 2x payments takes into account the length of a partner’s service and average annual income over a five year period, and is subject to a cap of 100 percent or 200 percent, respectively, of the partner’s five year average income. Both categories of benefits are unfunded and are payable to the retiring partner from future firm income in monthly installments for a period of ten years. Any uncollected revenues become payable on the death of a former partner to a designated beneficiary or to the partner’s estate.
Only partners who have retired from the firm are eligible for postemployment compensation. As used in the agreements, however, the term “retirement” is defined broadly to include circumstances other than traditional retirement. Paragraph 6 A of the partnership agreement provides: “The term ‘retire’ or ‘retirement,’ as used in this Agreement, shall, in addition to retirement in the usual sense, also include all circumstances (other than by death) under which an individual ceases to be a Partner of the firm (prior to January 1, 1993) or a Stockholder of a Partner, such as resignation or withdrawal or exclusion resulting from amendment of this Agreement.” That same definition of retirement applies to the employment agreement. Thus, in effect, a partner who satisfies the requisite age and longevity criteria is eligible to receive postemployment compensation regardless of the partner’s motivation for leaving the firm.
The actual receipt of benefits is conditioned, however, on the former partner’s compliance with the agreements’ noncompetition provision. Under that provision, payment is forfeited by “any former [employee or stockholder] who retired prior to the age of seventy (70) and who, for any period of time within the period of three (3) years after the effective date of such retirement, engages, either directly or indirectly, in the practice of law” in Fairfield, New Haven or Hartford counties, or certain designated counties in Florida, where the firm also had offices.
Also included in the agreements is a savings provision that empowers the arbitrator to modify the terms of the agreements to the extent necessary to comply with the rules of ethics. The provision specifically addresses the agreements’ broad definition of “retire,” and provides that postemployment payments do not become available unless, in addition to meeting the express criteria for eligibility, a partner “also satisfies such other or additional conditions or criteria relating to retirement, if there be any, that are required to qualify such benefits as ‘benefits upon retirement’ within applicable rules of ethics.” To that end, the savings clause empowers the arbitrator to construe, and if necessary, reform the agreements “to incorporate any other or additional conditions or criteria required ... so as to preserve the validity of the non-competition condition . . . and carry out the basic purposes ... to provide benefits to [partners] upon their retirement.”
As managing partner of the firm for several years, the plaintiff took an active role in the construction of the retirement benefits plan. The savings clause provision, in particular, was incorporated into the plan largely at the plaintiffs behest. In 1988, in the wake of a challenge brought by two of the firm’s former partners against the firm’s forfeiture upon competition clause, the plaintiff, acting as comanaging partner, advocated that the firm should enforce the clause to deter other partners from leaving and competing with the firm. Later, while acting as sole managing partner, the plaintiff, concerned about the validity of the lx benefits and the noncompetition clause, declined the suggestion of a fellow partner to extend the length of service requirement and impose a minimum age of eligibility, proposing instead the adoption of the savings clause provision. Thereafter, upon the plaintiffs suggestion, the remaining partners approved inclusion of the savings provision into all future agreements.
In April, 1996, after approximately thirty-five years of employment with the firm, the plaintiff, then age sixty, voluntarily resigned to commence his own practice in Fairfield county. Although the plaintiff satisfied the age and length of service requirements for both the lx and 2x benefits, the firm refused to make any payments of those benefits because the plaintiff had continued to practice law in violation of the noncompetition provision.
The plaintiff filed a demand for arbitration, seeking a declaratory judgment that he was entitled to receive all periodic payments of both basic and supplemental benefits without regard to whether he had engaged in the practice of law in Fairfield county. The plaintiff claimed specifically that the forfeiture upon competition provision violated rule 5.6 by conditioning the receipt of benefits on abstention from the practice of law, and that enforcement of the provision violated the public policy favoring clients’ ability to select an attorney of their choice. In an “Arbitration Opinion and Award” dated May 28, 1998, the arbitrator determined that the practice restriction violated neither the rule itself nor public policy. With respect to the 2x benefits, the arbitrator determined that the forfeiture provision qualified under the “retirement benefits” exception to the rule because payments were conditioned on objective age and length of service requirements that are characteristic of traditional retirement plans. In addition, the arbitrator ruled that the public policy behind rule 5.6, which promotes clients’ free choice of lawyers, also permits law firms to provide for retirement through the use of retirement plans that condition payment on noncompetition.
With respect to the lx benefits, the arbitrator determined that postemployment payments conditioned on only four years of service would not qualify as retirement benefits under currently accepted judicial interpretations of the ethics rules, and therefore, the forfeiture upon competition provision did not fall within the “retirement benefits” exception to rule 5.6. Nonetheless, the arbitrator invoked the savings clause, over the plaintiffs contention that the clause itself was contrary to public policy, so as to make the lx benefits available under the same conditions as the 2x benefits, and thereby preserve their validity. As to the savings clause, the arbitrator found that the clause represented a good faith attempt by the parties to comply with the dictates of the ethics rules, and therefore was not contrary to public policy. Accordingly, the arbitrator concluded that by practicing law in Fairfield county within three years of his retirement from the firm, the plaintiff had forfeited his entitlement to postemployment benefits.
Thereafter, pursuant to General Statutes § 52-418, the plaintiff filed in the trial court an “Application to Vacate Arbitration Award.” In a memorandum in support of that application, the plaintiff argued, in effect, that the trial court should review the arbitrator’s decision under a de novo standard of review to determine independently whether enforcement of the award would thwart a well-defined public policy. In addition, the plaintiff argued that the arbitration award violated rule 5.6 and was contrary to the public policy of this state because enforcement of a forfeiture provision against an attorney who has not fully retired from the private practice of law interferes with clients’ access to an attorney of their choice. For that same reason, the plaintiff argued, the arbitrator’s award had violated public policy by resorting to the savings provision to rewrite and thereby preserve an otherwise invalid forfeiture provision. The plaintiff reasoned that if the savings clause were to be enforced, an attorney would have no incentive to challenge an unethical noncompetition provision. Thus, according to the plaintiff, the savings clause itself encourages violations of the ethics rule.
The defendants thereafter filed an “Application to Confirm Arbitration Award” pursuant to General Statutes § 52-417, arguing that the trial court must afford the arbitrator’s award due deference in that its “findings of fact, legal analysis, and conclusions are based upon a thorough and reasonable interpretation of the legal and factual issues in [the] case, and the award [did] not violate public policy.” The defendants made the same claim with respect to the savings clause, arguing that no public policy would be offended by the parties’ effort to comply with the ethics rules by empowering the arbitrator to reform the terms of the agreement.
The trial court declined to review the arbitrator’s award de novo, holding that “ ‘[t]he public policy exception to arbitral authority should be narrowly construed and a court’s refusal to enforce an arbitrator’s interpretation of [an employment agreement] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant.’ ” The court agreed with the defendants that so long as the arbitrator “ ‘has identified, defined and attempted to vindicate pertinent public policy,’ ” the arbitration award should not be disturbed if the award’s resolution of public policy is “ ‘reasonably debatable.’ ” With respect to the postemployment benefits issue, the court determined that the arbitrator had carefully considered the plaintiffs public policy argument, and had reached the reasonable conclusion that the forfeiture provision, as applied to the 2x benefits, and after modification of the lx benefits, although having some effect on client choice, did not violate the public policy underlying rule 5.6. Giving “great deference” to the arbitrator’s findings of fact and legal conclusions, the court rendered judgment in the defendants’ favor confirming the award. The plaintiff appealed from the judgment of the trial court to the Appellate Court. Thereafter, upon the plaintiffs motion to transfer, the appeal was transferred to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
The plaintiff claims on appeal that: (1) the trial court should have exercised de novo review of the arbitrator’s decision; (2) the trial court improperly failed to conclude that the enforcement of a noncompetition provision with respect to benefits paid to an attorney who has not fully retired from the practice of law violates the strong public policy underlying rule 5.6 in favor of clients’ unfettered access to counsel of their choice; and (3) application of a savings clause to reform an otherwise invalid forfeiture provision violates the public policy underlying rule 5.6. The defendants dispute these claims and assert that the trial court properly deferred to the “reasonably debatable” factual findings and legal conclusions reached by the arbitrator as to the public policy undergirding rule 5.6, and the applicability of the savings clause.
As to the first issue, we conclude that because the arbitrator’s decision regarding the postemployment payments implicated a legitimate public policy, that is, facilitating clients’ access to an attorney of their choice, the trial court should have exercised de novo review. We conclude further, however, that although the public policy embodied in rule 5.6, in part, promotes clients’ access to an attorney of their choice, that policy does not require the absolute cessation of practice as a condition of retirement under the retirement benefits exception of the rule. Finally, we conclude that a savings provision included in an arbitration agreement authorizing the arbitrator to preserve the validity of an otherwise impermissible retirement benefits provision itself does not violate public policy when adopted in good faith to ensure compliance with the ethics rules.
PETERS, J., concurring in the result. I respectfully concur in the majority opinion. Although I agree with the result reached therein, I write separately because I differ from the majority on three grounds. I am persuaded that: (1) this court lacks the factual predicate to consider whether to overturn the award of the arbitrator under the circumstances of this case; (2) neither our precedents, nor those of other courts, provide any support for the proposition that all arbitral awards that implicate matters of public policy warrant de novo judicial review; and (3) for purposes of judicial review, all arbitral awards interpreting issues of public policy should be reviewed under the same deferential standard, regardless of whether the public policy at issue emanates from rules enacted by the judiciary, or from rules enacted by the legislature.
It is common ground that rule 5.6 of the Rules of Professional Conduct permits the partners in a law firm to condition the availability of retirement benefits upon a departing partner’s agreement to a clause limiting that partner’s ability to practice in competition with his former firm.1
In this case, there can be no possible claim that the plaintiff, Samuel V. Schoonmaker III, failed to understand the retirement benefits contract to which he had agreed, because he himself was the author of the contract.
The public policy issue raised by rule 5.6 is that restraints on competition for providing legal services might impair the access of prospective clients to the attorneys of their choice. The risk of such impairment becomes attenuated, although it does not vanish, when a former partner chooses to retire from the practice of law after a lifetime of legal service with a particular firm.
The interpretative issue before us is the validity of a provision in the retirement benefits policy that allows the fact finder, in this case the arbitrator, to reform any clause in the benefits policy that might be inconsistent with the public policy of rule 5.6.2 The arbitrator concluded that the provision was valid and enforceable. The majority opinion agrees with this conclusion, although it reaches that result by reasoning to which I do not subscribe, and without the deference to the arbitrator’s factual findings and legal conclusions that I believe our precedents mandate.
The core of the public policy concern that rule 5.6 addresses is a potential impairment of client choice of legal services. In the present case, the arbitrator made no factual findings about any adverse effect upon the plaintiffs present or future clients that might have resulted from the plaintiffs observance of the noncompetition clause. The record reveals no relevant offer of proof by the plaintiff on that particular point. Proof might well have been difficult because, by continuing his practice privately, in violation of the restrictive covenant, the plaintiff continued to serve his clients as rule 5.6 contemplates. There is, therefore, no factual basis for the majority’s lengthy inquiry into the public policy concern that rule 5.6 addresses. In the absence of some offer of proof by the plaintiff of an actual impact of the noncompetition clause on potential clients, the majority’s reconfiguration of our traditional scope of review lacks a solid foundation.
In considering the validity of noncompetition clauses in other contexts, this court repeatedly has observed that their validity is to be determined, not by the language in which they are couched, but by a factual inquiry into whether “they are reasonably limited and fairly protect the interests of both parties.” Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 530, 546 A.2d 216 (1988). As a general matter, there is, therefore, no presumption that such clauses are invalid. There equally is no presumption of invalidity simply because the clause may have an adverse impact on third parties. See id., 533. In light of this court’s long-standing preference for the judicial enforcement of arbitral awards that arise out of unrestricted submissions on matters expressly consigned by the parties to arbitration; see, e.g., Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989); there is no logical basis for the majority’s decision to undertake de novo review of matters not even remotely implicated by the arbitrator’s factual findings in this case.3
Moreover, the failure of the majority opinion to premise its result on the facts found by the arbitrator is inconsistent with previous decisions of this court, as well as numerous decisions from other jurisdictions. The proposition that the scope of judicial review of arbitral awards is constrained by the factual findings made by the arbitrator enjoys well-nigh universal support.
Until today, deference to arbitral findings of fact has been a hallmark of judicial review of arbitration decisions in this state. Two examples of that tradition of deference are illustrative.
O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 523 A.2d 1271 (1987), was a commercial arbitration case in which the losing party claimed that the arbitrator’s dereliction of duty had resulted in improper arbitral findings. We rejected that claim, observing, that, in numerous other Connecticut cases, “[t]his court has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention.” (Citations omitted; internal quotation marks omitted.) Id., 145. Especially relevant to the present case is our observation that “[t]he party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it . . . .” (Emphasis added.) Id., 145-46.
Watertown Police Union Local 541 v. Watertown, supra, 210 Conn. 333, was a labor arbitration case in which the union claimed that the arbitral award upholding its member’s discharge violated applicable principles of public policy. Id., 337. We rejected that claim as well. Again, we stated that “[a]n award, therefore, will normally be vacated only if it fails to conform to the submission, and the party challenging it has the burden of producing evidence sufficient to show that it does not conform to the submission.” Id., 338-39. Although we recognized that public policy issues may require greater judicial scrutiny than other objections to an arbitral award, we limited such scrutiny to a determination of whether the “award clearly violates an established public policy mandate.” Id., 340.
Garrity v. McCaskey, 223 Conn. 1, 612 A.2d 742 (1992), is not to the contrary. That case involved an arbitral determination that the plaintiffs securities claims were not barred by otherwise applicable state and federal statutes of limitation. The defendant urged us to overturn the award because it demonstrated “manifest disregard of the applicable law.” Id., 2. We declined to do so.
Our decision in Garrity reiterated our commitment to “undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” Id., 4-5; see also id., 10-11. We concluded, however, that, despite this rule of deference, “an award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to [General Statutes] § 52-418 (a) (4) because the arbitrator has ‘exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.’ ” Id., 10. We emphasized, nonetheless, that the “manifest disregard of the law” ground for vacating an arbitration award “is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.” Id. We held that the party challenging the validity of the award had failed to meet his burden of demonstrating that the award reflected “an egregious or patently irrational rejection of clearly controlling legal principles.” Id., 11.
The United States Supreme Court has endorsed the proposition that judicial review of arbitral awards is bounded by the fact-finding of the arbitrator. United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987), was a case in which an arbitrator overturned the discharge of an employee for possession of marijuana. In the course of upholding the arbitrator’s award, the court observed that “[c]ourts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. To resolve disputes about the application of a collective-bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them. The same is true of the arbitrator’s interpretation of the contract. The arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract.” Id., 38; see also United States Postal Service v. National Assn. of Letter Carriers, AFL-CIO, 839 F.2d 146, 149 (3d Cir. 1988) (“[c]ourts, therefore, are prohibited from second-guessing the arbitrator’s fact-finding”).
State courts around the country likewise have endorsed the view that the factual findings of arbitrators entrusted with consideration of an issue implicating public policy are not subject to de novo judicial review. See, e.g., International Assn. of Firefighters, Local 1619 v. Prince George’s County, 74 Md. App. 438, 449, 538 A.2d 329 (1988); Bureau of Special Investigations v. Coalition of Public Safety, 430 Mass. 601, 604, 722 N.E.2d 441 (2000); St. Paul v. AFSCME Council 14, Local 2508, 567 N.W.2d 524, 526-27 (Minn. App. 1997); Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420, 428-30, 672 A.2d 1132 (1996); New York State Correctional Officers & Police Benevolent Assn., Inc. v. New York, 94 N.Y.2d 321, 326-27, 726 N.E.2d 462, 704 N.Y.S.2d 910 (1999); Pennsylvania State Police v. Pennsylvania State Troopers Assn., 698 A.2d 688, 689 (Pa. Commw. 1997), aff'd, 1999 Pa. Lexis 3531.
It may well be that the majority opinion should be read to accept the applicability of the principle of deference to arbitral awards in the ordinary judicial review case. This case, it argues, is different because, in the course of our discussion in Garrity v. McCaskey, supra, 223 Conn. 1, we recognized that, in addition to the statutory grounds for setting an arbitral award aside that are stated in § 52-418, there are two common-law grounds for reaching such a result. Id., 6. Claims of error based on either of these common-law grounds, according to the majority opinion, should be treated like claims of egregious arbitral misconduct, which do not depend upon facts found by the arbitrator. Under the circumstances of this case, I disagree.
I do not doubt that if an arbitral award rules on the constitutionality of a statute, such an award would be outside the scope of authority of the arbitrator. Caldor, Inc. v. Thornton, 191 Conn. 336, 344, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). Of course, such an award requires independent full-fledged judicial review. The present case does not raise any constitutional issue.
The other common-law ground is that “the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, [supra], 210 Conn. 339 . . . .” Garrity v. McCaskey, supra, 223 Conn. 6. It is this common-law ground that, according to the majority, warrants de novo review of the arbitral award in the present case.
The public policy ground for review of arbitral decisions arises out of the common-law principle that “a court may refuse to enforce contracts that violate law or public policy . . . [because] no court will lend its aid to one who founds a cause of action upon an immoral or illegal act . . . .” (Citations omitted.) United Paperworkers International Union, AFL-CIO v. Misco, Inc., supra, 484 U.S. 42. Yet, in that very case, the United States Supreme Court concluded that federal courts were empowered to overturn an arbitrator’s public policy decision only if the award violated a clearly defined, dominant and undisputed rule of law. Id., 43. It upheld an arbitral award overturning the discharge of an employee for possession of marijuana at the workplace. Id., 45. The court observed that “[c]ourts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. To resolve disputes about the application of a collective-bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them. The same is true of the arbitrator’s interpretation of the contract. The arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract.” Id., 38.
Although the issue of the scope of judicial review for arbitral awards that are challenged on public policy grounds is a new question for this court, state courts around the country have agreed that the awards of arbitrators entrusted with consideration of an issue implicating public policy are not subject to de novo judicial review. Each of the state cases cited previously involved claims of improper arbitral resolution of public policy issues. See International Assn. of Firefighters, Local 1619 v. Prince George’s County, supra, 74 Md. App. 449; Bureau of Special Investigations v. Coalition of Public Safety, supra, 430 Mass. 604; St. Paul v. AFSCME Council 14, Local 2508, supra, 567 N.W.2d 526-27; Weiss v. Carpenter, Bennett & Morrissey, supra, 143 N.J. 428-30; New York State Correctional Officers & Police Benevolent Assn., Inc. v. New York, supra, 94 N.Y.2d 326-27; Pennsylvania State Police v. Pennsylvania State Troopers Assn., supra, 698 A.2d 689.
I would agree with the majority, nonetheless, if the submission to the arbitrator did not include the public policy issue raised on judicial review of the arbitral award. When, however, the arbitrator was entrusted with resolution of the public policy at issue, the rule should be deference to the arbitral award. Under such circumstances, as in the present case, I am persuaded that judicial review cannot reconsider the basis on which the arbitrator rendered his award. A contrary result flies in the face of our long history of respect for the institution of peaceful resolution of disputes through arbitration.
Perhaps the majority opinion should be read even more narrowly, to authorize de novo judicial review of arbitral awards implicating issues of public policy only when the public policy is one adopted by the judiciary. Under such circumstances, according to the majority, traditional deference toward arbitral awards must give way to the “greater expertise and knowledge” of the judiciary; page 430 of the majority opinion; to identify and apply the public policies inherent in judicially adopted rules of professional ethics. I disagree.
Because, in this day and age, the primary source of public policy is the legislature, I have difficulty in finding a basis for the distinction that the majority adopts. Even a cursory look through the General Statutes reveals numerous occasions on which the General Assembly has addressed ethical issues arising out of the conduct of professional personnel. Many statutes deal with avoidance of conflicts of interest. See, e.g., General Statutes §§ 1-86, 4b-102, 5-266a, 7-147b and 8-119zz. Others statutes require those who have a professional license to comply with the ethical standards of their professions. See, e.g., General Statutes §§ 20-74g, 20-103a and 20-196. The Connecticut Unfair Trade Practices Act; General Statutes §§ 42-110a through 42-110q; requires merchants to operate their businesses in an ethical manner. Closer to home, the judicial review council was created by the legislature to oversee the ethical conduct of the judiciary. See General Statutes §§ 51-51g through 51-51u. These statutes are indicative of the legislature’s important role in supervising ethical professional conduct.
Of equal significance, the majority’s distinction proves too much. The judiciary is entrusted, not only with oversight over members of the legal profession, but with preservation and adaptation of the common law, including general principles of equity. When the legislature has not spoken, we continue to be entrusted with deciding many significant cases in contexts that implicate ethical behavior. See, e.g., Ostrowski v. Avery, 243 Conn. 355, 364-67, 703 A.2d 117 (1997) (fairness of use of corporate opportunity); Stamford Hospital v. Vega, 236 Conn. 646, 660, 674 A.2d 821 (1996) (ethical duty of hospital for patient who refuses consent to treatment); Krawczyk v. Stingle, 208 Conn. 239, 244-46, 543 A.2d 733 (1988) (duty of professional to third parties); State ex rel. Beardsley v. London & Lancashire Indemnity Co., 124 Conn. 416, 427-28, 200 A. 567 (1938) (equitable fairness of doctrine charging third person’s estate with debts of donee). If an arbitrator were to consider the applicability of such common-law precedents in making his award, would de novo review be appropriate because development of the common law rests exclusively in the “greater expertise and knowledge” of the judiciary? In light of our traditional deference to arbitral decision making, I am persuaded, therefore, that the distinction adopted by the majority is untenable. It cannot be justified either by precedent or by logic.
The circumstances of the present case underscore the point. At bottom, the dispute between the parties is nothing more than a dispute about money. To the parties, all of whom are attorneys, the issue is whether they are bound by the express terms of a retirement policy to which they wholeheartedly subscribed at an earlier time. Traditionally, contract disputes about money have been grist for the arbitral mill. In my view, resolution of such disputes should continue to be governed by judicial deference to arbitral decision making.
I respectfully concur in the result reached by the majority opinion.
I agree with the majority’s resolution of this appeal. I only wish to add that, when reviewing an award claimed to violate a clear public policy, a court is not bound by the arbitrator’s conclusion that a clear public policy would not be violated by the award. Judicial review of whether an award violates public policy inherently requires a court to decide what clear public policy exists and whether the award violates that clear public policy. Absent that, there can be no meaningful judicial review.
Before such review is undertaken, as the majority states, the party alleging that an award violates public policy must make a colorable claim of such violation. In this case, the plaintiff failed to make an offer of proof to support such a claim. I agree with Justice Peters that this dispute, however described by the plaintiff, is simply a dispute about money and not about the principles of the ethical rules designed to make a lawyer’s services available to clients. In these circumstances, we should be bound by the arbitrator’s factual findings and uphold the arbitrator’s decision.