Ezel / Ethics Opinions / VTBAR

Could a Vermont lawyer include a general binding arbitration clause in a client representation agreement?

Short answer Opinion 03-07 found no categorical ethics bar to a general arbitration clause, but required written independent-counsel advice and, if declined, full explanation and written informed consent.
Bar
VTBAR
Issued
2003
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 2003. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2003
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A firm asked whether it could put a general binding arbitration provision in its retainer agreements. The committee found no per se prohibition in Vermont's professional rules or the federal and Vermont arbitration statutes it examined.

The opinion said the prospective client should receive written advice that independent counsel may be consulted before agreeing. If the client declined, the lawyer still had to explain arbitration's advantages and disadvantages fully and obtain written informed consent. It discussed Rule 1.8(h), noting that an arbitration forum does not itself limit malpractice liability, while acknowledging a court might view a clause differently for malpractice claims. It also pointed to 12 V.S.A. § 5652 for enforceable clause wording.

In practice

For the proposed retainer term, the opinion conditions its favorable answer on written independent-counsel advice and, when that advice is declined, a full explanation and written informed consent. Its discussion leaves possible court treatment of malpractice claims open.

Common questions

Q: Did the committee find a general arbitration clause automatically unethical?

A: No. It found no categorical prohibition in the professional rules or arbitration statutes it discussed.

Q: What if the prospective client did not seek independent counsel?

A: The opinion required the lawyer to explain arbitration's advantages and disadvantages fully and obtain the client's written informed consent.

Q: Did the committee say arbitration eliminates malpractice liability?

A: No. It distinguished changing the forum from limiting liability and acknowledged possible judicial treatment of malpractice claims.

Background and rules framework

The opinion considered Vermont Rule 1.8(h)'s prohibition on prospective malpractice-liability limits without independent representation, the federal and Vermont arbitration statutes, and ABA Formal Opinion 02-425. It found no Vermont case on point.

Citations and references

Rules of Professional Conduct:

  • Vermont Rule of Professional Conduct 1.8(h)

Statutes:

  • Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
  • Vermont arbitration statutes, 12 V.S.A. §§ 5651 et seq.; § 5652

Other opinions cited:

  • ABA Formal Opinion 02-425, arbitration of fee and malpractice disputes

See also

Source

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