In May 2012, Susan Snow retained the Portland, ME law firm of Bernstein Shur to represent her in a civil action, and she signed an engagement letter which, inter alia, required her to submit fee disputes , “and any other dispute that arises out of or relates to this agreement or the services provided by the law firm,” to binding arbitration. The provision did not mention malpractice claims specifically and Bernstein did not explain to Snow that the language meant that she would be waiving her right to sue the firm in court for malpractice. When Snow did sue for malpractice, Bernstein moved to compel arbitration. The Superior Court rejected Bernstein’s motion, Bernstein appealed, and the Law Court denied the appeal, on grounds of public policy. The Court’s reasoning was that an attorney owes a fiduciary duty to his or her client, and therefore cannot require the client to waive a legal right without fully informing the client of the significance and consequences of such a waiver. To put it simply, if Bernstein wanted the agreement to be enforceable, it should have given Ms. Snow the same explanation that she would have gotten if she had sought an independent opinion of the language from a reputable attorney at a different firm.

The opinion also rejected Bernstein’s argument based on the Federal Arbitration Act [see the Supreme Court’s opinion involving this issue, in Kindred Nursing Centers, 581 U.S. ___, 2017].

Snow v. Bernstein Shur, et al (Jabar, J), 2017 ME 239, Cum-17-054, 12-21-2017

About the blogger:  

Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).