NJSBA chimes in on arbitration provisions following 'Delaney' decision

The New Jersey State Bar Association (NJSBA) urged the Supreme Court's Advisory Committee on Professional Ethics (ACPE) not to expand the disclosure requirements for arbitration provisions in retainer agreements beyond those outlined by the Court in Delaney v. Dickey (A-30-19). The NJSBA instead recommended including in the Rules of Professional Conduct requirements set forth in the Dec. 21, 2020, opinion, finding that an arbitration provision that references a document regarding arbitration rights be presented to the potential client along with an explanation of those provisions.

The NJSBA participated as amicus curiae, arguing that the lower court engaged in improper rulemaking when it imposed additional requirements on attorneys utilizing arbitration provisions in their retainer agreement. The Supreme Court's decision echoed these concerns, stating in its opinion that its decision was prospective. It also referred the matter to the Advisory Committee on Professional Ethics to consider proposing "further guidance on the scope of an attorney's disclosure requirements." Such action was called upon by the NJSBA in its amicus filing so the committee could consider the issues and invite public commentary.