Does Arbitration of Legal Malpractice Claims Save Costs and Time ?
The traditional advantages of arbitration may not be so advantageous in the context of a legal malpractice claim.
For example, the savings of cost and time would likely be more of a disadvantage to the attorney alleged to have committed malpractice than to the client because the client's new attorney will typically be handling the claim on a contingency basis. See Powers, 38 S. TEX. L. REV. at 637;
See also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992) (noting efficiency and lower costs are frequently cited as the main benefits of arbitration).
In addition, the ability to pursue the claim in court may provide the client with a bargaining advantage in negotiating with an attorney who seeks to avoid litigation and its potential negative publicity. Id.
More importantly, the fundamental fiduciary nature of the attorney-client relationship dictates against an attorney's ability to impose an arbitration condition on a client.
Clients are often in vulnerable positions, requiring them to bestow a large amount of trust in their attorneys. "The client's vulnerability vis-a-vis the attorney is often exacerbated by the client's current legal situation. . . . He is neither expecting, nor emotionally prepared, to 'do battle' with his chosen attorney to protect his own rights." Power, 38 S. TEX. L. REV. at 648.
Applying general contractual principles to an arbitration provision in the attorney-client context ignores the practical reality that in most instances the attorney and his or her client are not engaged in an arm's length transaction during their initial negotiations. See Clark, 84 IOWA L. REV. at 852.
Attorneys generally have a greater advantage over their clients in an arbitration setting.
Attorneys are trained to conduct arbitration to the best advantage of their clients, See Powers, 38 S. TEX. L. REV. at 631.
Since one of the "selling points" of arbitration is the ability to proceed without an attorney, the client with the malpractice claim may not seek additional counsel, leaving the trained attorney with a distinct advantage. See id.