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Member Achievement and Case News: Featured

Arbitration of LPL Claim Rejected

Wednesday, January 3, 2018   (0 Comments)
Posted by: Tom Jensen
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Law firm included arbitration clause in its engagement agreement. Clause focused on fee disputes, but added "and any other dispute that arises out of or relates to this agreement or the services provided by the law firm shall also, at the election of either party, be subject to binding arbitration."  Later, client sued firm alleging malpractice arising from its handling of her civil case. Firm filed motion to compel arbitration. Trial court denied the motion. Ruling was affirmed in Snow v. Bernstein, et al., 2017 ME 239(Maine Dec. 21, 2017). Client alleged firm did not obtain her informed consent to the arbitration requirement, as suggested by professional conduct rules. Court noted the state's strong public policy favoring arbitration. But the policy will yield when arbitration requirements contravene public policy. Here they did. "To obtain the client's informed consent, the attorney must effectively communicate to the client that malpractice claims are covered under the agreement to arbitrate. The attorney must also explain, or ensure that the client understands, the differences between the arbitral forum and the judicial forum, including the absence of a jury and such 'procedural aspects of forum choice such as timing, costs, appealability, and the evaluation of evidence and credibility.'"      

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