South-Western Legal Studies in Business

You Snooze, You Lose the Right to Arbitration, Especially in Malpractice Cases
Description An attorney moved to enforce an arbitration agreement in her retainer agreement with a client who was suing her for malpractice. The appeals court held that the agreement was unenforceable because of the need for the client to have independent representation in a case of malpractice and because the attorney waited until litigation had been pending for months before insisting on arbitration.
Topic Alternate Dispute Resolution
Key Words Arbitration; Malpractice; Enforceability
C A S E   S U M M A R Y
Facts Attorney Haggins represented Thornton in a case that was dismissed for failure to provide discovery. Thornton then sued Haggins for malpractice. Haggins moved to stay the litigation and force arbitration since the attorney’s retainer agreement contained an arbitration clause. The trial court held that the arbitration agreement was not enforceable. Haggins appealed.
Decision

Affirmed. An arbitration agreement within an attorney’s retainer agreement is unenforceable in a malpractice case. The best interests of the client require consultation with an independent attorney in order to determine whether to agree to arbitrate attorney-client disputes. Haggins also lost her right to arbitration by participating in the litigation through numerous motions, including filing counterclaims against Thornton, and waiting until the matter had been pending in court for four months before requesting arbitration.

Citation Thornton v. Haggins, 2003 WL 23010100 (Ct. App., Ohio, 2003)

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