Jonathan E. Kanov

Arbitration Clause in Attorney Retainer Agreement Covering Professional Negligence Claims Found to Be Valid and Binding
Hill v. Farah & Farah, No. 2024-11972-CICI (Volusia)

A Florida state circuit court enforced a mandatory arbitration clause in a retainer agreement, thus dismissing a legal malpractice claims against a law firm filed by a former client. The agreement contained a mandatory arbitration clause, which stated that any and all legal disputes arising out of or relating to the agreement will be resolved through a binding arbitration proceeding administered in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Rejecting arguments that the clause failed to comply with Florida Bar Rule 4-1.5(i) and that the firm waived its right to arbitrate by delay, the court held that the agreement was enforceable and compelled arbitration under Florida’s Revised Arbitration Code.

The law firm filed a motion to dismiss and/or to compel arbitration. In opposition, their former client, the plaintiff, argued that the agreement failed to comply with Florida Bar Rule 4-1.5(i), which provides required language notifying the client that he or she should consider consulting with another lawyer about the advisability of entering into an agreement with an arbitration provision concerning fee disputes. That language was included in the agreement, but the law firm added “and other” to the first sentence of the notice, which states in full: “NOTICE: This agreement contains provisions requiring arbitration of fee and other disputes.” 

Further, the plaintiff contended that the notice language in the agreement was ineffective since it was underlined rather than solely in bold type. These arguments were rejected by the court. 

The plaintiff also argued that the law firm waived its right to arbitrate her malpractice claims by failing to invoke the arbitration clause or to reserve the right to do so in the order of withdrawal as counsel, or in the two years before the plaintiff filed her complaint. 

Waiver of the right to arbitrate may be found if the party seeking arbitration first answered the complaint and then engaged in discovery regarding the merits of a claim before moving to compel arbitration. Olson Elec. Co. v. Winter Park Redev. Agency, 987 So. 2d 178, 179 (Fla. 5th DCA 2008); Ibis Lakes HOA, Inc. v. Ibis Isle HOA, Inc., 102 So. 3d 722, 731 (Fla. 4th DCA 2012) (“The active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived.”). All doubts regarding waiver should be construed in favor of arbitration. Retail Detail Merch., LLC, v. Murphy, 373 So. 3d 670, 674 (Fla. 5th DCA 2023). 

The trial court also rejected the plaintiff’s position that the law firm waived its right to arbitrate, as the motion to dismiss and/or to compel arbitration was filed as the firm’s initial response to the malpractice complaint. The trial court held that the agreement required the plaintiff to submit her claims for professional negligence to binding arbitration. The case was dismissed pursuant to Fla. Stat. Chapter 682, Revised Florida Arbitration Code. The plaintiff has appealed the ruling to the 5th District Court of Appeal, which remains pending.  

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