Are arbitration clauses in attorney engagement agreements enforceable in legal malpractice actions in Pennsylvania? Although not routinely utilized, there is no prohibition on arbitration clauses between lawyers and clients in Pennsylvania. Several recent cases have reinforced the ability of attorneys to include arbitration clauses that are enforceable in legal malpractice cases, but also the difficulties inherent in enforcing such provisions.

Twenty years ago, the Pennsylvania Bar Association issued an advisory opinion (Advisory Opinion 97-140) regarding the permissibility of alternative dispute resolution clauses in attorney engagement agreements. Although largely focused on alternative dispute resolution in the context of fee disputes, the opinion stated: “Relative to the other areas of potential lawyer-client disputes, certainly fee disputes would be an appropriate subject of arbitration and, since a frequent defense to a fee claim is that of malpractice, malpractice claims should also be a permissible subject of arbitration.” Indeed, this is entirely consistent with our Rules of Professional Conduct. Pennsylvania Rule of Professional Conduct 1.8(h)(1) states “a lawyer shall not … make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.” Comment 14 to Rule 1.8 explains: agreements prospectively limiting a lawyer's liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. This paragraph does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement … .