When you decide to pursue a personal injury claim, one of the most important decisions you will make is who will represent you. Many people assume that, if something goes wrong with their representation down the road, they will have the right to have the dispute decided by a jury. This is one of your basic constitutional rights in Florida.
But what if the engagement agreement your prospective attorney has asked you to sign contains a clause requiring that all disputes be resolved through arbitration? Would this waive your right to a jury trial if, for example, you think your attorney committed malpractice?
It could. If carefully crafted to comply with Florida law, an arbitration clause could require you to give up your right to a jury trial in certain circumstances.
Many clients feel uneasy when they see that language, and understandably so. Before you sign, it’s important to know what rights you might be giving up.
A common scenario
Imagine you were injured in an accident and are meeting with a personal injury lawyer. The lawyer provides you with their standard engagement agreement and asks you to sign it. You notice it has an arbitration clause stating that any disputes between you and the lawyer must be resolved in private arbitration rather than in court.
You pause. What does arbitration mean? Would you still be able to sue the lawyer if they committed malpractice in your case? Would you be giving up your right to a jury trial?
What arbitration could mean for you
Arbitration is a private form of dispute resolution. It can be faster and more informal than court, and parties sometimes choose arbitration deliberately for those reasons. But arbitration also differs from a jury trial in ways that may matter to someone considering a legal malpractice claim.
For example, the claim would be decided by the arbitrator – not a jury. And, if you disagree with the arbitrator’s decision, you might not have the right to appeal.
Requiring arbitration can meaningfully change how disputes are resolved, so Florida’s professional conduct rules place specific requirements on client agreements that include mandatory arbitration clauses.
What the Florida Rules of Professional Conduct require
When writing agreements for prospective clients, Florida lawyers must comply with Florida Rule of Professional Conduct 4-1.5(i). That rule requires, among other things, that the prospective lawyer advise you in writing that you have the right to get independent legal advice before signing the agreement. Further, the agreement must contain this specific notice in bold print:
“NOTICE: This agreement contains provisions requiring arbitration of fee disputes. Before you sign this agreement you should consider consulting with another lawyer about the advisability of making an agreement with mandatory arbitration requirements. Arbitration proceedings are ways to resolve disputes without use of the court system. By entering into agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right to go to court to resolve those disputes by a judge or jury. These are important rights that should not be given up without careful consideration.”
What to watch for and what to do
- Get advice from another attorney before you sign. Ask for time to review the agreement and consult with another attorney about what rights you would be giving up.
- If you’ve already signed, get the contract reviewed. An agreement that fails to include the required written language may not be enforceable.
- Consider the scope of the clause. Some clauses require arbitration only in fee disputes; others cover any dispute, including malpractice. The precise wording matters to whether a court or arbitrator would enforce it.
- Reflect on what the request to sign such a clause suggests about the representation. While asking you to sign an arbitration agreement is not in itself wrongdoing, you may reasonably want to understand whether your interests are being prioritized.
Getting a second opinion can clarify what rights you would be waiving and whether the arbitration clause is likely to be enforceable.
Next steps
Whether you are deciding whether to sign an agreement or you have already signed one and are unsure what to do now, get independent legal advice. Have a lawyer who is familiar with Florida’s fee agreement rules and their enforcement review your agreement. An attorney who handles legal malpractice cases would be an excellent resource.