Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney-client retainer agreement include a provision for mandatory binding arbitration of potential malpractice claims against the attorney?
There is no prohibition against an attorney-client retainer agreement requiring arbitration of potential malpractice claims. Where there is no preexisting attorney-client relationship between the parties, the extent to which the client is fully advised of the terms and consequences of the arbitration provision and knowingly consents to it goes to the legal enforceability rather than the ethical propriety of the provision. However, where there is a preexisting attorney-client relationship, the attorney has an ethical duty apart from any legal duty to assure that the client is fully aware of and knowingly consents to the terms and consequences of the arbitration provision the attorney seeks to negotiate with the client.
Rules 3-300, 3-310 and 3-400 of the Rules of Professional Conduct of the State Bar of California.
California Evidence Code section 951.
California Code of Civil Procedure sections 1141.10, 1280 et seq. and 1295.
The Committee has been asked to reconsider its prior State Bar Formal Opinion No. 1977-47. That opinion finds it improper for a lawyer to enter into an agreement with a client or prospective client providing for binding arbitration of malpractice claims, unless the client or prospective client is fully advised of the possible consequences of such an agreement and is encouraged to consult independent counsel regarding the agreement.
For the purpose of this opinion, it is essential to distinguish the issue of whether an arbitration agreement is legally enforceable from whether such an agreement is ethically proper. This Committee addresses only the latter issue. Significantly, State Bar Formal Opinion No. 1977-47 recognized that there is no ethical or legal authority prohibiting arbitration agreements and nothing inherently improper about such agreements between lawyers and clients. Nevertheless, based on Canon 9 of the American Bar Association Code of Professional Conduct which requires a lawyer to avoid even the appearance of impropriety, State Bar Formal Opinion No. 1977-47 concluded that including an arbitration provision in a retainer agreement without fully advising the client of the consequences of the provision and advising the client to seek independent counsel before entering into the agreement was improper.
Because the American Bar Association "appearance of impropriety" standard upon which State Bar Formal Opinion No. 1977-47 is predicated is not binding in California,1 and because of developments in the law since State Bar Formal Opinion No. 1977-47 was promulgated, it is appropriate to reconsider that opinion at this time.
The public policy underlying arbitration as a means of resolving civil disputes is well established. California Code of Civil Procedure section 1281 assures that agreements to arbitrate are enforceable. California has a ". . . strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution." (Manatt, Phelps, Rothenberg & Tunney v. Lawrence (1984) 151 Cal. App.3d 1165, 1174 [199 Cal.Rptr. 246].) "The policy of the law is to favor arbitration, and every reasonable intendment is indulged to give effect to such proceedings." (Lehto v. Underground Construction Co. (1977) 69 Cal.App.3d 933, 939 [138 Cal.Rptr. 419].) Arbitration is a recognized and favored means by which parties expeditiously and efficiently settle disputes which might otherwise take years to resolve. It is the policy of this state to encourage parties to adjust their differences by selecting the arbitration tribunal. (Vernon v. Drexel Burnham & Co. (1975) 52 Cal.App.3d 706, 715-16 [125 Cal.Rptr. 147].)
California Code of Civil Procedure section 1141.10 declares the legislative intent of California's judicial arbitration procedure:
The Legislature further finds and declares that arbitration has proven to be an efficient and equitable method for resolving small claims, and that courts should encourage or require the use of arbitration for such actions whenever possible.
California Code of Civil Procedure section 1280 et seq. provides a statutory framework for enforcing arbitration agreements. Section 1281 declares that:
A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.
Arbitration of a wide variety of claims including professional negligence claims is statutorily favored. (California Code of Civil Procedure section 1295 [arbitration of medical malpractice claims]; California Code of Civil Procedure section 1296 [arbitration of public construction contract disputes]; California Code of Civil Procedure section 1297.11 [arbitration of international commercial disputes]; California Code of Civil Procedure section 1298 [arbitration of real estate contract disputes].)
Agreements requiring arbitration of malpractice claims in the medical field are valid and enforceable. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706-08 [131 Cal. Rptr. 882].) Submitting professional negligence claims to arbitration is in fact a "proper and usual" practice. Id. In Doyle v. Giuliucci (1965) 62 Cal.2d 606 [43 Cal.Rptr. 697], the California Supreme Court found that an agreement to arbitrate a child's medical malpractice claim was enforceable and that such an agreement was reasonable for it did "no more than specify a forum for the settlement of disputes." Id.
In Madden v. Kaiser Foundation Hospitals, the California Supreme Court rejected the assertion that medical malpractice arbitration agreements favored Kaiser's interests, noting that "[t]he speed and economy of arbitration, in contrast to the expense and delay of jury trial, could prove helpful to all parties; the simplified procedures and relaxed rules of evidence in arbitration may aid an injured plaintiff presenting his case." (Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d at p. 711.)
The fact that an arbitration agreement may contain elements of an adhesion contract does not, in and of itself, render the arbitration agreement invalid. (Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 357 [133 Cal.Rptr. 775].) The essential inquiry is whether both parties fully understood the terms of the agreement they entered into. (Id.)
Based on these authorities, the Committee is of the opinion that public policy favors the use of arbitration as a means of resolving disputes between attorneys and clients and that this public policy is furthered by allowing mandatory arbitration provisions to be included in attorney-client retainer agreements.
The Committee is of the opinion that rule 3-400 is not applicable. Rule 3-400 provides in pertinent part:
A member shall not:
(A) Contract with a client prospectively limiting the member's liability to the client for the member's professional malpractice....
By requiring arbitration of potential disputes, an attorney is not limiting liability. A standard arbitration provision does not detract from or limit an attorney's duty to use reasonable care nor limit liability for breach of this duty. It merely selects the forum in which liability will be determined. (See Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d at pp. 711-12; Doyle v. Giuliucci, supra, 62 Cal.2d at p. 606.) The factors that make arbitration an attractive vehicle for resolving disputes apply equally to the parties.2 By selecting the arbitral forum, the parties act consistently with the public policy in support of arbitration.
Any time an attorney and client enter into a retainer agreement, there is a potential conflict of interest between them as the relationship of debtor and creditor is established. Except as noted below, the initial creation of the attorney-client relationship does not fall within the coverage of the conflict of interest rules.
Conflict of interest rule 3-310 applies to an attorney's representation of adverse parties. It applies to conflicts that arise between clients as opposed to conflicts between an attorney and a client. As a conflict of interest generated by a retainer agreement is between the attorney and client and not between different clients, rule 3-310 does not apply. Rule 3-300 addresses potential conflicts between attorney and client. It prohibits an attorney from entering into a business relationship with a client or acquiring an ownership, possessory, security or other pecuniary interest adverse to the client unless certain precautions are taken. Although, once created, the attorney-client relationship is arguably a "business relationship" between attorney and client, before it is first created, it is between attorney and prospective client rather than between attorney and client. The negotiations by which the attorney-client relationship is initially created are presumed to be at arms length. (Berk v. Twentynine Palms Ranchos, Inc. (1962) 201 Cal.App.2d 625, 637 [20 Cal.Rptr. 144].) Unless an ownership, possessory, security or other pecuniary interest adverse to the client is involved, rule 3-300 does not apply to the terms by which the attorney-client relationship is initially created.
In Setzer v. Robinson (1962) 57 Cal.2d 213 [18 Cal.Rptr. 524], the client contended that his consent to a retainer agreement had been induced by undue influence and that the agreement was therefore void. The court held that the presumption of undue influence upon which the client relied was ". . . not applicable to a contract by which the relation of attorney and client is originally created and the attorney's compensation is fixed." (Id. at p. 216-17.) Otherwise, the court observed, an attorney could not negotiate a fee agreement with a prospective client without being ". . . placed in the impossible position of becoming the prospective client's attorney while he was attempting to reach an agreement with him as to whether he should become his attorney or not." (Id. at p. 217.)3
Because an arbitration provision is not an ownership, possessory, security or other pecuniary interest, rule 3-300 has no application to such a provision. Therefore, a retainer agreement initially creating the attorney-client relationship which does not involve any interest of the attorney governed by rule 3-300, may ethically contain an arbitration requirement without any further disclosure or other precautions. Such factors go to the legal enforceability rather than the ethical propriety of the arbitration provision.
Ethical considerations do exist, however, whenever an attorney attempts to negotiate an arbitration provision with a client during the course of an existing attorney-client relationship. Although rule 3-300 still does not apply because no ownership, possessory, security, or other pecuniary interest is involved, an attorney nevertheless has an on going ethical duty to preserve the trust and confidence existing clients place in the attorney.
Whenever an attorney negotiates an agreement with an existing client, the attorney has an ethical duty to assure that the agreement is fair and openly made with full knowledge on the part of the client of the facts and of the client's legal rights with respect thereto. (Berk v. Twentynine Palms Ranchos, Inc., supra, 201 Cal.App.2d at p. 637; Carlson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212, 226-27 [64 Cal.Rptr. 915].)
As was stated by the California Supreme Court in its earliest decisions, "[t]he relation between an attorney and client is a fiduciary relation of the very highest character, and binds the attorney to the most conscientious fidelity . . ." (Cox v. Delmas (1893) 99 Cal. 104, 123 [33 P. 836].) "An attorney at law should be a paragon of candor, fairness, honor, and fidelity in all his dealings with those who place their trust in his ability and integrity, and he will at all times and under all circumstances be held to the full measure of what ought to be." (Sanguinetti v. Rossen (1906) 12 Cal.App. 623, 629-30 [107 P. 560].)
Therefore, if an attorney seeks to negotiate an arbitration provision in a retainer agreement with an existing client, the attorney has an ethical duty to fully disclose to the client the terms of the provision and its legal consequences.4
The recent appellate court decision in Lawrence v. Walzer & Gabrielson (1989) 207 Cal.App.3d 1501 [256 Cal.Rptr. 6], confirms that there is nothing inherently improper or unethical about arbitration provisions in an attorney-client retainer agreement. In Lawrence, the plaintiff and the defendant attorneys entered into an initial retainer agreement which, among other provisions, included the following:
In the event of a dispute between us regarding fees, costs or any other aspect of our attorney-client relationship, the dispute shall be resolved by binding arbitration. The prevailing party in any arbitration or litigation between us shall be entitled to reasonable attorney's fees and costs. (Id. at p. 1504.)
Despite this provision in the agreement, the plaintiff filed a civil complaint against the defendant attorneys alleging malpractice. The defendant attorneys sought to compel arbitration and stay the civil action. In opposition to the motion to compel arbitration, the plaintiff stated that she was not aware of the binding arbitration provision, did not understand its significance and would not have consented to it if she had been aware of it. The trial court denied the petition to compel arbitration which was then appealed.
The appellate court confirmed the public policy in favor of resolving disputes by arbitration. In finding that arbitration could not be compelled based upon the retainer agreement in question, the court found that the plaintiff had not knowingly agreed to arbitration. The court emphasized that no matter how strong the policy favoring arbitration may be, the obligation to arbitrate is still consensual in nature.
In order to be enforceable, an agreement to arbitrate must have been openly and fairly entered into. (Lawrence v. Walzer & Gabrielson, supra, 207 Cal.App.3d at p. 1507-08.) The court, therefore, found that the arbitration agreement was not enforceable because the client had not knowingly entered into it. However, in so finding, the court did not find that the attorneys had acted unethically. In fact, the court rejected the request of the plaintiff's counsel that sanctions be awarded against the defendants and/or their attorneys. The significance of Lawrence v. Walzer & Gabrielson is that the court assumes such an agreement to be ethically proper but finds, based upon the particular facts of that case, that the agreement there involved was not legally enforceable. The court cited State Bar Formal Opinion No. 1977-47 with approval for the proposition that there is nothing inherently improper about an arbitration agreement between a lawyer and client extending to malpractice claims contained in the initial retainer agreement. However, in order for the provision to be legally enforceable, the client must be aware of and consent to it.
Consistent with our State Bar Formal Opinion No. 1977-47 and the holding of Lawrence v. Walzer & Gabrielson, the Committee reaffirms the principle that there is nothing ethically improper with including an arbitration provision in the initial attorney-client retainer agreement by which the attorney-client relationship is first established. The extent to which the client is aware of the provision and freely consents to it goes to the legal enforceability of the agreement, not its ethical propriety.5 However, where an arbitration provision is negotiated between an attorney and an existing client, ethical considerations aside from any legal considerations require that the attorney fully disclose the terms and consequences of the provision and that the client knowingly consent to it. It is the Committee's opinion that compliance with the provisions set forth in California Code of Civil Procedure section 1295 (see footnote 5) would satisfy the ethical concerns present when an arbitration provision is negotiated with an existing client.
To the extent our prior State Bar Formal Opinion No. 1977-47 is inconsistent with this opinion, it is disapproved.6
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
To avoid the possibility of an arbitration provision being found to be unenforceable, a lawyer is well advised to ensure that the arbitration clause is conspicuous, plain, and clear. It would be wise to include language comparable to that required by California Code of Civil Procedure section 1295, which sets forth standards applicable to the arbitration of medical malpractice claims. Section 1295 requires that the contract state in at least 10-point bold red type that in signing the contract the patient is agreeing to have any medical malpractice issue decided by a neutral arbitrator and is specifically waiving the right to a jury or court trial.
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