Hawaii recently issued an informal opinion reaching the same conclusion. Other states have adopted contrary positions, so it is incumbent on attorneys to research the laws and ethics opinions of their specific jurisdiction to determine the appropriateness of arbitration agreements. While arbitration is a desirable method of resolving disputes between attorneys and their clients, there are certain factors to keep in mind when seeking to obtain client consent to such alternative dispute resolution. It is critical that the client engagement letter be drafted to clearly spell out that arbitration is to be used for dispute resolution. Higher standards should prevail in the practice of law.
Lawyers have to be better.
These terms become one more marker clearly and legitimately defining the attorney-client relationship. Also be sure to remember what the agreement is not intended to do and what it clearly cannot do. It cannot serve as a prospective limitation of an attorney's malpractice liability. It is clearly improper in all jurisdictions to seek to impose any limitation on a client's right to collect damages for an attorney's malpractice in representing the client. An agreement to arbitrate claims does not in any way limit such right, but rather spells out the procedure by which that right is asserted.