In this application to stay arbitration, Mark Alan Harris appeals the trial court’s final judgment, in which the court concluded that the pertinent arbitration clause was valid and enforceable and in which the court therefore refused to stay the arbitration brought against Harris by Harris’s former attorney and that attorney’s businesses. We hold that the arbitration clause was voidable by Harris on the conflict-of-interest ground that Harris’s former attorney who negotiated the clause, who advised Harris to sign the agreement containing the clause, and who was himself a party to the agreement was a personal beneficiary of that clause and in fact along with his businesses is a party in this attempted arbitration proceeding against his former client. Moreover, the common-law claims of indemnity and contribution, which the former attorney and his businesses seek to arbitrate against Harris, arose independently of the terms of the agreement and were therefore not covered by the arbitration clause in any case. Accordingly, we reverse. The relevant facts are undisputed. Harris’s father-in-law Hilliard P. Burt, Sr. is an attorney who was also the principal in several businesses. In 2002 Harris, who was a general contractor, persuaded the father-in-law to use his businesses Albany Lime & Cement Company, The Burt Company, Burt Development Company, and Hotel Trust to purchase a residence and to hire Harris on a cost-plus-ten-percent basis to renovate the residence. Harris was also to share in the profits from the resale of the residence. After the renovation was complete and the residence resold in 2004, the new purchasers found numerous construction defects in the house and in 2005 sued Harris for negligent construction, breach of contract, and fraud. The father-in-law entered an appearance as Harris’s attorney in the action and actively represented him.
A few months later, the purchasers added the father-in-law and his businesses as defendants in the action. Though now a party to the suit, the father-in-law continued to represent Harris in the action, despite conflict-of-interest questions raised by the plaintiffs. Cf. Rule 3.7 a, Bar Rule 4-102 d, Georgia Rules of Professional Conduct. Unable to locate any written contract as to the terms of the renovation agreement, the father-in-law in 2005 advised Harris, for purposes of the ongoing litigation, to execute a contract backdated to 2002 memorializing the terms of the renovation agreement between Harris on the one hand and the father-in-law and his businesses on the other hand. The father-in-law prepared the contract and included an arbitration clause, even though no such clause had been a part of the original 2002 renovation agreement. Harris and the father-in-law and his businesses executed the contract.
