We begin by stating the obvious: Arbitration is firmly rooted in our culture as a means of resolving disputes. Anyone who has recently purchased "pricey" products or services knows that predispute agreements to arbitrate are typically non-negotiable parts of everyday bargains. Notwithstanding the ubiquitous nature of arbitration clauses, or perhaps because of their widespread use, the legal enforceability of such agreements is frequently challenged by those who insist on exercising a constitutionally guaranteed right to have their day in court before a judge sworn to uphold the law or a trial by a jury of their peers. (1) More often than not, such challenges run aground because judges favor extra-judicial resolution of disputes via arbitration. (2) But attitudes change, as do notions of propriety, when the agreement to arbitrate is between lawyer and client, requiring arbitration of all potential client claims against the lawyer for breach of fiduciary duty, malpractice, or any other common law or statutory claim arising out of the engagement and the attorney-client relationship. To ask for such an agreement is considered by some as a faux pas at best, and, at worst, an act repugnant to and inconsistent with the highest principles of the profession. In Florida, hostility to predispute agreements requiring the arbitration of legal malpractice claims has existed in high places among important people. It was evidenced most recently in the December 2003 decision of the Board of Governors of The Florida Bar to withdraw Proposed Advisory Opinion 02-9 of The Florida Bar's Professional Ethics Committee. This proposed ethics advisory opinion concluded that "an agreement for mandatory binding arbitration to resolve all disputes between an attorney and a client is ethically permissible under specific circumstances." To this day, those Florida lawyers tracking the path of Opinion 02-9 have found little, if any, intellectual satisfaction in, or practical guidance from, the reasons cited by the Board of Governors as justifying withdrawal of Opinion 02-9. Those of us who hoped for clarification of the ethical issues raised by predispute arbitration provisions have no deep-water safe harbor. We did not receive a clear pronouncement that such arbitration provisions were per se unethical, nor did we receive any guidance regarding the circumstances under which such provisions would be deemed ethically permissible. However, as explained more fully below, Opinion 02-9 lives on in the recent amendment to Rule 4-1.5(i) of the Florida Rules of Professional Conduct.
