This paper will examine the issues surrounding arbitration in the legal malpractice setting. The first part of the paper will discuss the background to the increasing use of mandatory arbitration clauses in attorney-client agreements. The second part of the paper will look at how the issue is handled in various states. The third part of the paper will discuss some important concerns about using mandatory arbitration to resolve malpractice claims and some proposed solutions to these concerns.
Background: The Advent of Mandatory Arbitration Clauses
With the explosion of litigation in American society during the last half of the twentieth century, many commentators have championed the use of arbitration to settle legal disputes. Legislators have tended to agree with this view and have enacted numerous statutes encouraging and governing the use of arbitration in lieu of litigation. The inclusion of mandatory arbitration clauses in commercial contracts is now a widespread practice, even mandating the arbitration of issues that raise questions of significant public interest. Moreover, courts have upheld these mandatory arbitration clauses.
This acceptance of arbitration, however, has not been universally present in the area of legal malpractice for several reasons. First, only recently has there been a tremendous increase in the number of malpractice claims filed against attorneys. Second, arbitration is most likely to be considered by parties who have been repeatedly named as defendants and who recognize the high costs of litigating a dispute in court. Few law firms or individual attorneys have been such repeat defendants. Third, not untilreal justification for an extended analysis of alternatives to litigation until the recent increase in legal malpractice claims. Fourth, it was not until recently that the bases for legal malpractice were settled. Before then, judicial resolution of the applicable law took precede...