4.07. Provision for Arbitration of Malpractice Claims

If prospective waivers of malpractice claims are ordinarily unethical, what about provisions which say that if a client asserts a malpractice claim against the lawyer that the claim must go to arbitration and not litigation.  So the lawyer might include the following provision in an engagement letter: “I, Client, agree that any dispute related to representation of me in this matter will be arbitrated.  I understand that arbitration is a method of resolving disputes without going to court.” 

There are two main points to make about arbitration agreements like this.  First, they are not per se unethical.  These provisions can ethically be included in an engagement letter so long as the client is “fully informed of the scope and effect of the agreement.”[1]   Second, the arbitration provision must also be enforceable under state law.  Arbitration agreements are controversial, and states have adopted standards that must be met for arbitration provisions to be enforceable generally. For example, state law may require that the arbitration provision be a certain size font, be initialed separately, or even be included as a separate document that is acknowledged by the client.

[1] Rule 1.8, Comment [15].