Since Congress enacted the Federal Arbitration Act in 1925, the Supreme Court has instructed courts to “rigorously enforce” arbitration clauses according to their terms. Accordingly, courts largely uphold arbitration clauses in form contracts. During the late twentieth and early twenty-first centuries, arbitration clauses became increasingly common in retainer agreements between lawyers and clients. The ethical and fiduciary duties that lawyers owe their clients complicate the use of these agreements to arbitrate malpractice disputes. There is thus a tension between the national policy in support of arbitration clauses and a lawyer’s duty to act in the best interests of his or her client. States differ in their willingness to enforce arbitration clauses contained in retainer agreements.
This Comment argues that, prior to entering an agreement to arbitrate malpractice disputes, ethical considerations require explicit disclosure of the implications of arbitration. Furthermore, the formation of specialized legal malpractice arbitration boards would encourage a fair process. Some argue that the most ethical approach is to refrain from using arbitration clauses in retainer agreements altogether. However, there is a strong national trend in favor of arbitration clauses, including in retainer agreements. Given this reality, this Comment proposes that lawyers and courts follow the guidelines set forth in a recent Louisiana Supreme Court decision to ensure that clients give fully informed consent when signing arbitration clauses. This Comment further suggests that arbitration providers follow the approach taken by other industries and hire experts in the field of legal malpractice to arbitrate malpractice claims.