The Binding Arbitration Disclosure
Many law firms have become fond of including binding arbitration provisions in their fee agreements. Texas generally permits binding arbitration in lawyer-client disputes and doesn’t prohibit the inclusion of arbitration provisions in fee agreements; however, the Texas Supreme Court’s Professional Ethics Committee added an important qualification to the use by lawyers of binding arbitration agreements.
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In pertinent part, the Professional Ethics Committee, in Opinion 586 (October 2008), opined:
In order for the client’s agreement for arbitration to be effective, the Committee believes that the client must receive sufficient information about the differences between litigation and arbitration to permit the client to make an informed decision about whether to agree to binding arbitration. While most of the duties flowing from the lawyer-client relationship attach only after the creation of the lawyer-client relationship, some duties may attach before a lawyer-client relationship is established. See paragraph 12 of the Preamble to the Texas Disciplinary Rules of Professional Conduct. Rule 1.03(b) provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The Committee is of the opinion that this Rule applies when a lawyer asks a prospective client to agree to binding arbitration in an engagement agreement. In order to meet the requirements of Rule 1.03(b), the lawyer should explain the significant advantages and disadvantages of binding arbitration to the extent the lawyer reasonably believes is necessary for an informed decision by the client. The scope of the explanation will depend on the sophistication, education and experience of the client. In the case of a highly sophisticated client such as a large business entity that frequently employs outside lawyers, no explanation at all may be necessary. In situations involving clients who are individuals or small businesses, the lawyer should normally advise the client of the following possible advantages and disadvantages of arbitration as compared to a judicial resolution of disputes: (1) the cost and time savings frequently found in arbitration, (2) the waiver of significant rights, such as the right to a jury trial, (3) the possible reduced level of discovery, (4) the relaxed application of the rules of evidence, and (5) the loss of the right to a judicial appeal because arbitration decisions can be challenged only on very limited grounds. The lawyer should also consider the desirability of advising the client of the following additional matters, which may be important to some clients: (1) the privacy of the arbitration process compared to a public trial; (2) the method for selecting arbitrators; and (3) the obligation, if any, of the client to pay some or all of the fees and costs of arbitration, if those expenses could be substantial. Although the disclosure should vary from client to client, depending on the particular circumstances, the overriding concern is that the lawyer should provide information necessary for the client to make an informed decision.
HOWEVER, the Texas Supreme Court in Royston, Rayzor, Vickery & Wlliams, LLP v. Lopez, 467 S.W.3d 494, 506 (Tex. 2015), found that that the specific disclosure requirements outlined in Opinion 586 were not clear ethical obligations with respect to attorneys explaining the implications of binding arbitration provisions in their fee contracts to potential clients. The Court acknowledged that attorneys owe certain duties to potential clients with respect to fee contracts generally. and pointed to its prior holding in Hoover Slovacek v. Walton (Tex. 2006) regarding the unconscionability of a provision in that fee contract. In this Lopez opinion, however, Court upheld the arbitration provision in the law firm's fee contract with its client, even in the absence of any such advance disclosure of binding arbitration's implications to the client. But note that the focus of this legal challenge by the client to the firm's arbitration provision, among other issues, did not hinge solely on this "disclosure of arbitration implications" issue, but rather on the alleged "one-sidedness" of the arbitration provision--which the Court did not find was so "one-sided" as to be unconscionable. The Court also found that the Texas discipiinary rules "inform the law" in Texas and that the Rules themselves have primacy over the Committee's opinions applying the Rules in certain scenarios.