Washington Lawyer - April 2019 - 43

ASK THE ETHICS EXPERTS

FEE CLAIMS
& MANDATORY
ARBITRATION
CLAUSES
By Saul Jay Singer

Q
A

I include a standard clause in my retainer agreement requiring the client to waive
the right to trial for any fee claim related to my representation and to submit any
such claim to the D.C. Bar's Attorney Client Arbitration Board (ACAB). I recently
settled a case for a sophisticated client on very favorable terms, but she refuses
to pay my fee and threatens to sue me for "incompetent representation." She also
claims that my arbitration provision is unenforceable because it failed to cite specific
language that is required to compel her to arbitrate before the ACAB. She alleges
that while she may compel arbitration before the ACAB,1 I do not have any such
right. Can this be correct?
No. While a client does have the right to compel a lawyer who is subject to the
disciplinary jurisdiction of the D.C. Court of Appeals to arbitrate a fee claim before
the ACAB, lawyers and clients may also agree in the retainer agreement to arbitrate
fee disputes.

Previous Legal Ethics Opinions 211 and 218, which interpreted D.C. Rule 1.8
(Transactions With Clients) and mandatory arbitration provisions, did indeed require
that lawyers include very specific written disclosure language in the retainer, specifically that:
the client be advised in writing that counseling and a copy of the ACAB's rules are available
through the ACAB staff and further that the lawyer encourage the client to contact the ACAB for
counseling and information prior to deciding whether to sign the agreement and that the client
consent in writing to mandatory arbitration.
However, in Legal Ethics Opinion 376 (Mandatory Arbitration Provisions in Fee Agreements),2 the Legal
Ethics Committee reconsidered the viability of these older opinions and concluded that the 2007 amendments to Rule 1.8 and Comments [1] and [13] superseded them. More importantly for your purposes, the
committee concluded that mandatory arbitration provisions are permissible to the extent that such agreements are valid and enforceable and the client is fully informed of the scope and effect of any agreement,
reiterating and emphasizing the importance of obtaining the client's informed consent (see Rule 1.0(e) definition) to the arbitration provision. Thus, the committee concluded that the specific language of Opinion
218 was no longer required.

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For information regarding the ACAB and its requirements and procedures, please call 202-780-2772 or email
acabinfo@dcbar.org.
D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay Singer, and Erika Stillabower are available for inquiries
at ethics@dcbar.org.
NOTES
1 See Rule XIII of the D.C. Court of Appeals Rules Governing the Bar.
2 See dcbar.org/bar-resources/legal-ethics/opinions/Ethics-Opinion-376.cfm.

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Washington Lawyer - April 2019

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