Adr and the Lawyer's Fee Agreement
| Jurisdiction | Colorado,United States |
| Citation | Vol. 12 No. 1991 Pg. 2523 |
| Pages | 2523 |
| Publication year | 1991 |
1991, December, Pg. 2523. ADR and the Lawyer's Fee Agreement
For some time, editorials in the press have encouraged creative methods for ameliorating the cost and time associated with litigation. Alternative dispute resolution ("ADR") has received support not only from the Colorado Bar Association ("CBA"), but also from the state legislature, judiciary and public. Further, the leadership of the judiciary and the CBA have encouraged lawyers to suggest that clients engage in arbitration or mediation as an alternative to dispute resolution through litigation.
With this attention and favor focused on ADR, it is only logical for lawyers to use ADR methods such as arbitration or mediation in their own disputes with clients. This article discusses the reasons for addressing ADR in lawyers' fee agreements and presents the suggested model language for such an agreement (see Appendix).
During the 1986 legislative session, the Colorado legislature amended CRS § 13-21-102 to preclude punitive damages in arbitration proceedings, even if the decision is enforced or approved by court action. DR 6-102(A) of the Code of Professional Responsibility ("Code") precludes a lawyer from attempting to limit the lawyer's liability to a client for personal malpractice. Thus, it may appear that it would be unethical---and might subject a lawyer to a grievance proceeding---if the lawyer placed a binding arbitration clause in his or her fee agreement. In 1986, the Colorado Supreme Court held in People v. Foster(fn1) that it would be unethical for a lawyer to attempt to limit liability for personal malpractice prospectively. It is a matter of conjecture whether an attorney could enter into an agreement with a client whereby the arbitrator would be permitted to award punitive damages.
Having represented numerous lawyers in grievance matters and legal malpractice claims, this author has found that, in the majority of cases, the attorney did not have a written fee agreement with the client. The absence of a written fee agreement often led to misunderstandings concerning the nature and scope of the attorney's engagement. These misunderstandings made the defense of the malpractice claims more difficult and the grievance complaints more severe than they otherwise would have been.
The CBA-sponsored professional...
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