Lawyers from Lindquist & Vennum, which is now part of Philadelphia-based Ballard Spahr, may have to face a legal malpractice action in court after a Philadelphia judge found an arbitration clause in the firm's retainer agreement to be in violation of ethical requirements.

The lawyers from Lindquist & Vennum “failed to reasonably disclose the prospective limitations the firm was placing on its own liability for malpractice” in its retainer agreement with ex-client Mackin Medical, Philadelphia Court of Common Pleas Judge Ramy Djerassi wrote in an opinion filed Dec. 26.

“Mackin Medical was not given sufficient objective information required by Pennsylvania courts to understand that its former attorneys were prospectively limiting their own liability for malpractice without telling Mackin Medical that it had a right to consult independent counsel first,” Djerassi found.

Ballard Spahr, which is also named as a defendant, acquired Minneapolis-based Lindquist & Vennum about a year ago.

Lawyers from Lindquist & Vennum represented Macklin Medical from late 2013 to 2016 to renegotiate a licensing agreement with Green Light Lasers, according to Djerassi's opinion. Mackin rents medical equipment to hospitals and doctors.

The company has alleged that Lindquist & Vennum lawyers advised Mackin that it could continue to rent out Green Light Laser technology, even after Mackin's license with Green Light terminated. Green Light ultimately sued Mackin for patent infringement.

Shortly after that suit was filed, Lindquist & Vennum terminated its client relationship with Mackin, the opinion said, citing a conflict of interest.

Mackin sued Lindquist & Vennum in February 2018, alleging legal malpractice. The law firm sought to compel arbitration based on the retainer agreement it entered into with Mackin in 2016, but Djerassi overruled the firm's preliminary objection. The defendants have filed an appeal in the Pennsylvania Superior Court.

In a footnote to the opinion, Djerassi said the retainer agreement is “unconscionable” and that “the integrated document is a deliberate attempt to impose an arbitration scheme affected by fundamental unfairness because it seeks to limit malpractice liability without informed consent.”

Djerassi said the firm did not use the words “malpractice” or “legal negligence” in the dispute resolution provision of its retainer agreement with Mackin, which it executed in December 2013.

Djerassi also noted that the case brings about a question Pennsylvania courts have not yet addressed.

“Courts in Pennsylvania and elsewhere have reviewed malpractice waiver in the context of binding arbitration but focus on whether the retainer letter itself contains adequate information to allow a malpractice claim by arbitration,” the opinion said. “The cases are not on point with the question [of] whether a retainer agreement that violates a state court's professional rules is unconscionable and therefore not subject to arbitration.”

Ballard Spahr declined to comment Wednesday.