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In a case less known for the issues than for the absence of an attorney at oral argument, the state Supreme Court on Thursday upheld binding arbitration for attorney fee disputes in certain circumstances. Because he had waived protections established by state statutes, the court ruled unanimously, San Francisco lawyer Raul Aguilar also waived any right to invalidate a contractual arbitration agreement with his divorce lawyer by suing her for malpractice. The decision takes a back seat to the hubbub that has surrounded Aguilar v. Lerner, 04 C.D.O.S. 3476, since it was argued before the Supreme Court on Feb. 10. On that day, no one showed up in Sacramento to advocate the case on Aguilar’s behalf. Allen Kent, a former litigator at Aguilar & Sebastinelli who was scheduled to argue the case, left the firm five days before argument. He and Aguilar, who are at loggerheads, spent Tuesday and Wednesday in State Bar Court attempting to explain their positions and avoid being held in contempt. A report to the Supreme Court is due on April 30. Thursday’s ruling held that a contractual agreement to arbitrate fee disputes normally would give way to the state’s Mandatory Fee Arbitration Act, which gives clients the option of non-binding arbitration or traditional litigation. But the court held that Aguilar had waived his statutory rights by suing for malpractice. “At the time the parties entered into their agreement to arbitrate,” Justice Kathryn Mickle Werdegar wrote for a unanimous court, state law provided that “�a client’s right to request or maintain arbitration under the provisions of this article is waived by . . . seeking affirmative relief against the attorney for damages or otherwise based upon alleged malpractice or professional misconduct.’ “That plaintiff filed a lawsuit against [Esther] Lerner in San Francisco Superior Court alleging professional malpractice is undisputed,” she wrote. In a separate concurring opinion, Justice Ming Chin said that while he agreed that Aguilar had waived his rights, he believed the court may have gone too far by condoning a system whereby clients could evade binding arbitration agreements by demanding a non-binding arbitration hearing that the client doesn’t want in the first place. “This would result in many sham nonbinding arbitrations that neither party wanted or intended to accept. We cannot reasonably conclude,” Chin wrote, “that the Legislature created a system whereby clients who agree to binding arbitration may evade that agreement, but only if they go through the charade of demanding and obtaining a non-binding arbitration that they may not want.” Justices Marvin Baxter and Janice Rogers Brown concurred. Aguilar could not be reached for comment. But Walnut Creek solo practitioner Howard Melamed, who represented San Francisco divorce lawyer Lerner, claimed victory. “I think a lawyer still has to participate in the MFA. He still has to do that,” Melamed said, “but once participating in the MFA, he can then require a client to participate in binding arbitration if the parties do not agree with the result in the non-binding arbitration. “The Supreme Court ruling,” he added, “is plain that an arbitrator has broad power to decide virtually any issue raised in arbitration.”

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