Ohio Board Advisory Opinion Op 96-009

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 96-9
Issued December 6, 1996
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility
which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: An engagement letter between a lawyer and an individual client should not
contain language requiring a client to prospectively agree to arbitrate fee disputes, legal
malpractice disputes, or professional ethical misconduct disputes. Within this opinion, the
use of the word “client” refers to an individual who has sought legal assistance.
Arbitration of a fee dispute should be a voluntary decision made by a client after
opportunity to consider the facts and circumstances of the dispute and to consult, if
desired, with independent private counsel or with a bar association fee dispute program.
Arbitration of a legal malpractice dispute should be a voluntary decision made by a client
after opportunity to consider the facts and circumstances of the dispute and to consult, if
desired, with independent counsel. Arbitration of a professional ethical misconduct
dispute is not a decision for an attorney to impose upon a client. An attorney should not
require a client to forego filing a disciplinary grievance or to dismiss or resolve a
disciplinary grievance outside Rule V.
OPINION: This opinion considers the application of the Ohio Code of Professional
Responsibility to the use of arbitration clauses in engagement contracts between attorneys
and individual clients. This opinion does not address the enforceability of arbitration
clauses for that is a legal question outside the scope of this opinion. This opinion also
does not address the use of arbitration clauses in engagement contracts between attorneys
and clients that are corporations or any other organization recognized by law as a separate
entity. Within this opinion, the use of the word “client” refers to an individual who has
sought legal assistance.
Should an engagement letter between a lawyer and an individual client
contain language requiring a client to arbitrate fee disputes; malpractice
disputes; and or disputes regarding ethical misconduct?
Fee dispute-arbitration clauses
Ethical Consideration 2-22 of the Ohio Code of Professional Responsibility urges lawyers
to amicably resolve fee disputes with clients.
Withdrawn October 1, 2021

Opinion 96-9 2
EC 2-22
A lawyer should be zealous in his [her] efforts to avoid controversies over
fees with clients and should attempt to resolve amicably any differences on
the subject. He [she] should not sue a client for a fee unless necessary to
prevent fraud or gross imposition by the client.
Amicable fee dispute resolution is also favored under Rule V of the Supreme Court Rules
for the Government of the Bar. The rule expressly permits time extensions in an
investigation “when all parties voluntarily enter into an alternative dispute resolution
method for resolving fee disputes sponsored by the Ohio State Bar Association or a local
bar association.” See Gov.Bar R. V §4(D)(1). Fee arbitration is also mentioned within
the Ohio Code of Professional Responsibility. Under DR 2-103(C)(2)(b), attorneys who
participate in a lawyer referral service may be required to submit any fee disputes with a
referred client to mandatory fee arbitration. The rule does not mention whether a client’s
consent is required.
Fee dispute resolution is also encouraged on a national level. In February 1995, the
House of Delegates of the American Bar Association approved Model Rules for Fee
Arbitration. Under the Model Rules, arbitration of fee disputes is voluntary for clients,
but mandatory for lawyers if commenced by a client. See ABA Model Rules for Fee
Arbitration, Rule 1(C) (1995).
Under both Gov.Bar R. V §4(D)(1) and the ABA Model Rules for Fee Arbitration, the
decision to arbitrate must be entered into voluntarily by the client. This Board agrees that
a decision to arbitrate a fee dispute should be by voluntary consent of a client. An
engagement contract requiring an individual client to prospectively arbitrate all fee
disputes makes such decision less voluntary. The client must sign the agreement in order
to receive legal services. The agreement attempts to prospectively eliminate a client’s
opportunity to consider particular facts and circumstances of a dispute and to seek
independent advice as to the matter. When a fee dispute overlaps with claims of ethical
misconduct such as inadequate representation or charging a clearly excessive fee, there is
the danger that an attorney might attempt to mask the ethical misconduct by enforcing the
prospective agreement to arbitrate the fee issue.
Ethics advisory committees in several states permit attorneys to use retainer agreements
providing for mandatory arbitration of fee disputes, but impose conditions upon the use.
In the District of Columbia, the client, prior to deciding whether to sign an agreement,
must be advised in writing of the availability of counseling by the staff of the Attorney-
Client Arbitration Board and the client’s written consent must to obtained. See District of
Columbia Bar, Op. 218 (1991). In Maryland, the client must be advised in the retainer
agreement that his or legal rights, including the right to a jury trial, may be affected by the
decision to arbitrate fee disputes; and the client must be advised of the right to confer
with other counsel about adverse consequences, such as res judicata or collateral estoppel,

Opinion 96-9 3
that may result from the decision to arbitrate. See Maryland State Bar Ass’n, Op. 94-40
(1994).
This Board is not persuaded by these opinions. It is impractical to require a client to seek
independent counsel before signing an engagement contract with a lawyer—the client
would need to “hire a lawyer to hire a lawyer.” It sends the wrong message to the public:
Beware, the lawyer you are hiring to protect your interests may be trying to take
advantage of you in the engagement contract.
Arbitration of fee disputes serves the Code’s aspirational objective of amicable fee
dispute resolution and has received broad support from the profession. This Board joins
in supporting arbitration of fee disputes. However, the Board emphasizes and advises
that an agreement to arbitrate a fee dispute should not be required of an individual client
prospectively. It should be a voluntary decision made by a client after opportunity to
consider the facts and circumstances of the dispute and to consult, if desired, with
independent private counsel or with a bar association fee dispute program.
Legal malpractice-arbitration clauses
DR 6-102(A) of the Ohio Code of Professional Responsibility restricts efforts by
attorneys to limit their liability for personal malpractice.
DR 6-102 LIMITING LIABILITY TO CLIENT
(A) A lawyer shall not attempt to exonerate himself [herself] from or limit
his [her] liability to his [her] client for his [her] personal malpractice.
By comparison, the Board notes that ABA Model Rule 1.8(h) restricts a lawyer
from making a prospective agreement to limit liability to a client for malpractice
unless permitted by law and the client is independently represented.
What is considered an attempt to limit liability for personal malpractice? In Cincinnati
Bar Ass’n v. Schultz, a majority shareholder of a legal professional association instructed
employees not to forward a file to a client who decided to change attorneys until the client
signed a confidential release of all claims against the firm. A violation of DR 6-102(A)
was found. See Cincinnati Bar Ass’n v. Schultz, 71 Ohio St. 3d 383, 385, 386 (1994) In
Columbus Bar Ass’n v. Blankenship, an attorney paid a client money and required the
client to sign a release of claims after the client filed a grievance against the attorney for
not filing her custody case. A violation of DR 6-102(A) was found See Columbus Bar
Ass’n v. Blankenship, 74 Ohio St. 3d 586, 587, 589 (1996). In Columbus Bar Ass’n v.
Ewing, a violation of DR 6-102(A) was found when an attorney attempted to have his
clients sign a “Memorandum of Settlement and Disclosure of Conflicting Interest of
Counsel” that stated the clients did not believe the attorney was “taking their farm” and
promised that the clients would not make such statements to anyone. See Columbus Bar

Opinion 96-9 4
Ass’n v. Ewing, 75 Ohio St. 3d 244, 248, 249, 251 (1996). In Toledo Bar Ass’n v.
Dzienny and Toledo Bar Ass’n v. Westmeyer, violations of DR 6-102(A) were found
when the attorneys attempted to cover up their negligence in missing the statute of
limitations. See Toledo Bar Ass’n v. Dzienny, 72 Ohio St. 3d 173, 175, 176 (1995);
Toledo Bar Ass’n v. Westmeyer, 35 Ohio St. 3d 261, 263 (1988).
Is a clause in an engagement contract requiring a client to arbitrate legal malpractice
claims an attempt by an attorney to limit liability for personal malpractice? The Board is
not aware of any disciplinary case in Ohio addressing this precise issue.
A legal malpractice-arbitration clause shifts resolution of a legal malpractice dispute from
a court of law to a different forum. A client’s right to sue in court and have a jury trial
may be eliminated. However, there is no automatic escape for an attorney from liability
for personal malpractice. An arbitration decision may favor the client instead of the
lawyer. Thus, this Board’s view is that an attorney’s use of a legal malpractice arbitration
clause in an engagement letter is not a per se attempt to limit liability in violation of DR
6-102(A). See e.g., Monahan v. Paine Webber Group, 724 F. Supp. 224, 227 (S.D. N.Y.
1989); McGuire, Cornwell, & Blakey v. Grider, 765 F. Supp. 1048, 1050, 1051 (D. Colo.
1991).
Nevertheless, the Board discourages the use of engagement letters requiring clients to
prospectively agree to arbitrate legal malpractice disputes. The basis for the Board’s view
is that underlying the DR 7-101 duty to represent a client zealously there is a lawyer’s
duty of loyalty to a client that includes protection of clients from agreements that do not
serve the client’s best interest. A decision to file a malpractice action against an attorney
or arbitrate a malpractice claim may depend upon the facts and circumstances of the
particular conduct involved. Prospective agreements in which a lawyer requires a client
to arbitrate future legal malpractice claims may not be in the client’s best interest. Such
prospective agreements eliminate the opportunity for a client to consider the facts and
circumstances of the dispute and to seek independent counsel for review of the disputed
matter and advice as to the best course of action for the client. Before entering such
prospective agreements, most clients would benefit from the advice of individual counsel.
As stated in Question One, it is impractical to expect most clients to “hire a lawyer to hire
a lawyer.” This reflects poorly upon the legal profession. In addition, although not a
concern of this Board, a decision to arbitrate a malpractice dispute may be a decision that
the attorney should not make independently without consultation with his or her
malpractice insurance carrier.
The Board notes that some states permit prospective agreements to arbitrate legal
malpractice claims, but with conditions. Some states advise that the client must be
represented by independent counsel in entering the agreement. See e.g., District of
Columbia Bar, Op. 211 (1990); State Bar of Michigan, Informal Op. RI-257 (1996).
Other states require that the client be advised to seek counsel. See e.g., State Bar of

Opinion 96-9 5
Arizona, Op. 94-05 (1994); Philadelphia Bar Ass’n, Op. 88-2 (1988); Virginia State Bar,
Op. 638 (1984).
This Board is not persuaded by these views. It is impractical to require most clients to
consult a lawyer to determine whether it would be in their best interests to sign an
engagement contract with a lawyer. This approach does not foster the type of relationship
that should exist between an attorney and his or her individual client. It sends the
message that the lawyer being hired cannot be trusted to consider the client’s best interest.
It discourages access to the legal system. It makes lawyers look untrustworthy in the eyes
of the public and the profession.
Thus, the Board advises that an engagement letter between a lawyer and a client should
not contain language requiring a client to prospectively agree to arbitrate legal
malpractice disputes. Arbitration of a legal malpractice dispute should be a voluntary
decision made by a client after opportunity to consider the facts and circumstances of the
dispute and to consult, if desired, with independent counsel. In so advising, the Board is
not discouraging arbitration of legal malpractice disputes when the decision is made
voluntarily by a client who has had an opportunity to consider the facts and circumstances
of a particular dispute and opportunity to consult with independent counsel.
Professional ethical misconduct-arbitration clauses
Under Gov.Bar R. V §4(G) an attorney has a duty to cooperate with the disciplinary
process. A client should not be asked by an attorney to forego filing a disciplinary
grievance or to dismiss or resolve a disciplinary grievance outside Rule V. By requiring a
client to prospectively agree to arbitrate disputes regarding professional misconduct, an
attorney is attempting to circumvent the disciplinary process rather than cooperate with
the process.
Such agreements also exceed the scope of an attorney’s authority, for the authority to
regulate and discipline the legal profession lies within the sole authority of the Supreme
Court of Ohio. See Ohio Const. art. IV, § 2(B)(1)(g). Further, an attorney is responsible
for his or her conduct and should not attempt to escape responsibility for misconduct
through a contract with a client. Attempting to thwart the disciplinary process
undermines the regulation of the legal profession.
Attempts to thwart disciplinary investigations after misconduct has occurred has been
found to be an ethical violation. In Cuyahoga County Bar Ass’n v. Berger, two attorneys,
in settling a matter, had their client enter into an agreement that in the event of inquiries
by any bar association the response would be limited to “the matters have been resolved.”
This was found to be an attempt to suppress a bar association investigation. See
Cuyahoga County Bar Ass’n v. Berger, 64 Ohio St. 3d 454, 456 (1992).
This Board also disfavors attempts by attorneys to limit exposure to disciplinary
proceedings through prospective agreements with clients. Several other states have

Opinion 96-9 6
advised against such attempts. In Michigan, a lawyer may not enter an agreement with a
client that disputes arising from the representation pertaining to the lawyer’s ethical
misconduct will be resolved in an alternate dispute resolution program. See State Bar of
Michigan, Op. RI-257 (1996). Also in Michigan, a lawyer may not use a retainer
agreement that restricts a client from reporting an attorney to the attorney grievance
commission. See Michigan State Bar, Op. RI-196 (1994). In Maine, a lawyer may not
accept a release from a client for past or future claims of ethical misconduct. See Maine
Bd of Overseers of the Bar, Op. 68 (1986).
For these reasons, the Board advises that an engagement letter between a lawyer and a
client should not contain language requiring a client to prospectively agree to arbitrate
professional ethical misconduct disputes. Arbitration of a professional ethical
misconduct dispute is not a decision for an attorney to impose upon a client. An attorney
should not require a client to forego filing a disciplinary grievance or to dismiss or
resolve a disciplinary grievance outside Rule V. The regulation and discipline of the
legal profession lies within the authority of the Supreme Court of Ohio.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.