FORMAL OPINION INQUIRY #1995-96/10
Incorporation of mandatory arbitration clause into attorney-client fee agreements, as requested by malpractice carrier.
May 8, 1996
ANNOTATION:
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)].
QUESTIONS:
- 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?
- 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?
- 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?