When our Supreme Court recently visited the propriety of a provision in an attorney’s retainer agreement that binds client and attorney to arbitrate any dispute arising out of the attorney’s representation, it framed the issue as “whether a lawyer has a duty to explain the benefits and disadvantages of a provision in a retainer agreement that binds the client to arbitrate a future fee dispute or legal malpractice action in a non-judicial forum.” Delaney v. Dickey and Sills Cummis & Gross (A-30-19) (Dec. 21, 2020). One would think the answer to that question is a “no-brainer.”

Sure, the lawyer does. The retainer agreement is the foundational document of the business relationship between lawyer and client. The lawyer presumably has superior knowledge of the client’s legal alternatives to elect the fora in which to resolve any dispute with his lawyer and the advantages and disadvantages to the client of choosing one over another. The lawyer’s fiduciary duty to the client compels advice that puts the client’s interest before his own. Whatever that duty may be, the court agreed with the Appellate Division that Sills did not satisfy it. Merely including a hyperlink in the retainer agreement to the 33 pages of JAMS (the designated arbitration organization) rules including the cover page and table of contents without an accompanying explanation or, indeed, providing the client with a hard copy, did not satisfy Sills’ duty to fully inform its client.