Well-drafted clauses and full disclosure to clients should overcome ethical and other objections that might be made to arbitrating malpractice
ARBITRATION has become an accepted method of resolving disputes between many types of professionals and their clients. Physicians, real estate brokers, and other professionals frequently require arbitration agreements or include clauses requiring arbitration of disputes in their agreements with their clients or patients.
In the lawyer-client setting, however, arbitration of disputes, other than those over fees, is less common. This is, in part, because clauses requiring arbitration rarely, until recently, have been included in retainer agreements. However, by avoiding litigation expenses and the uncertainty of a jury trial, arbitration may effectively reduce the costs of malpractice for some lawyers. This article addresses the enforceability of arbitration clauses in retainer agreements for attorney-client disputes, other than fee disputes.'
Arbitration is a less expensive and more private means of resolving legal malpractice claims. Streamlined procedural and evidentiary rules apply. Although many features of arbitration are attractive to defendants, the California Supreme Court has rejected the assertion that arbitration favors defendants' interests. In Madden v. Kaiser Foundation Hospitals,2 the court stated that the "speed and economy of arbitration, in contrast to the expense and delay of jury trial, could prove helpful to all parties; the simplified procedures and relaxed rules of evidence in arbitration may aid an injured plaintiff presenting his case."
Although arbitration does not restrict the amount or theories of liability under which a client might seek to recover, it does require that the potential plaintiff forgo certain significant rights, foremost being the right to a jury trial and broad discovery. However, flexibility is a significant advantage of using alternative dispute resolution procedures. For example, mediation, binding arbitration, non-binding arbitration, or arbitration binding on the attorney only may be used. It also is possible for the procedures and rules governing discovery or the admission of evidence to be structured in a manner consistent with the parties' goals.
ARBITRATION CLAUSES IN RETAINER AGREEMENTS
In California, legislative endorsement of written arbitration agreements is embodied in Section 1281 of the Code of Civil Procedure, which provides: "A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract."
The likelihood that attorney-client disputes will be submitted to an alternative procedure is increased if the parties agree in advance to use such procedures in the event a dispute arises. Clauses compelling arbitration of malpractice claims therefore are more frequently included in retainer agreements. Moreover, advance agreements to arbitrate can specify in detail the organization that will conduct the arbitration, whether the arbitrators' decision will be binding on one or more parties, whether mediation will precede the arbitration, and any limitations on discovery or presentation of evidence.
Ethical concerns have stalled widespread use by lawyers of arbitration agreements governing malpractice disputes. While no express ethical prohibitions preclude use of arbitration clauses in retainer agreements, Rule 1.8(h) of the American Bar Association Model Rules of Professional Conduct forbids the use of an "agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement." Even so, a New York federal district court held that DR 6-102(a) of the former Code of Professional Responsibility, which proscribed a lawyer's attempting "to exonerate himself from or limit his liability to his clients for his personal malpractice," did not prohibit use of an arbitration agreement governing legal malpractice claims. …