Incorporation of mandatory arbitration clause into attorney-client fee agreements, as requested by malpractice carrier.

May 8, 1996


A lawyer shall not represent a client if the representation of that client will be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected; and the client consents after consultation and with knowledge of the consequences. [Rule 1.7(b)].


  1. Does incorporation of a mandatory arbitration clause within an attorney-client fee agreement limit a client’s constitutional right to seek judicial remedy regarding malpractice disputes?
  2. Does the incorporation of a mandatory arbitration clause benefit a lawyer’s interests but adversely affect the interest of the client by prospectively limiting the client’s forum without providing the client with independent representation, thereby causing a conflict of interest?
  3. Whether the inclusion of a binding arbitration clause within a fee agreement should be considered a contractual matter between attorney and client, or a legal service provided by a fiduciary?

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