Ohio Legal Malpractice Lawyers

In Ohio, Legal Malpractice Disputes Over Arbitrate Fee

The Supreme Court of Ohio: BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE

An engagement letter between a lawyer and an individual client should not contain language requiring a client to prospectively agree to arbitrate fee disputes, legal malpractice disputes, or professional ethical misconduct disputes. Within this opinion, the use of the word “client” refers to an individual who has sought legal assistance.  Arbitration of a fee dispute should be a voluntary decision made by a client after opportunity to consider the facts and circumstances of the dispute and to consult, if desired, with independent private counsel or with a bar association fee dispute program. 

Arbitration of a legal malpractice dispute should be a voluntary decision made by a client after opportunity to consider the facts and circumstances of the dispute and to consult, if desired, with independent counsel. Arbitration of a professional ethical misconduct dispute is not a decision for an attorney to impose upon a client.  An attorney should not require a client to forego filing a disciplinary grievance or to dismiss or resolve a disciplinary grievance outside Rule V.

OPINION:  This opinion considers the application of the Ohio Code of Professional Responsibility to the use of arbitration clauses in engagement contracts between attorneys and individual clients.  This opinion does not address the enforceability of arbitration clauses for that is a legal question outside the scope of this opinion.  This opinion also does not address the use of arbitration clauses in engagement contracts between attorneys and clients that are corporations or any other organization recognized by law as a separate entity.  Within this opinion, the use of the word “client” refers to an individual who has sought legal assistance.

Nevertheless, the Board discourages the use of engagement letters requiring clients to prospectively agree to arbitrate legal malpractice disputes.  The basis for the Board’s view is that underlying the DR 7-101 duty to represent a client zealously there is a lawyer’s duty of loyalty to a client that includes protection of clients from agreements that do not serve the client’s best interest. 

A decision to file a malpractice action against an attorney or arbitrate a malpractice claim may depend upon the facts and circumstances of the particular conduct involved.  Prospective agreements in which a lawyer requires a client to arbitrate future legal malpractice claims may not be in the client’s best interest. Such prospective agreements eliminate the opportunity for a client to consider the facts and circumstances of the dispute and to seek independent counsel for review of the disputed matter and advice as to the best course of action for the client.

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