Many large law firm retainer agreements contain arbitration clauses. It is our guess that the law firms believe that respondent has the better hand in arbitration, that arbitration is costly and not particularly beckoning to Plaintiffs, and that arbitrators will be kinder to the law firm than would a jury. Arbitration clauses are enforceable, and little can be done after the retainer agreement is signed.
Menche v Meltzer, Lippe, Goldstein & Breitstone, LLP 2015 NY Slip Op 04617 Decided on June 3, 2015 Appellate Division, Second Department demonstrates how the Appellate Division pays heed to an arbitration clause.
“The plaintiff retained the defendant law firm Meltzer, Lippe, Goldstein & Breitstone, LLP, to represent him in two matters involving his service as a trustee. An engagement letter executed by the parties contained an arbitration provision stating that in the event of “any dispute arising out of or relating to this agreement and/or the legal services rendered hereunder,” the parties agreed to binding arbitration before the Alternative Dispute Resolution Tribunal of the Bar Association of Nassau County, Inc. After a dispute arose, the plaintiff commenced this action in the Supreme Court to recover damages for legal malpractice, breach of fiduciary duty, and fraud. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, and the Supreme Court granted the motion.
” To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law'” (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 857, 858, quoting Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life. Ins. Co. of N.Y., 98 NY2d 314; Leon v Martinez, 84 NY2d 83). Contrary to the plaintiff’s contention, the arbitration provision of the engagement letter was clear, explicit, and unequivocal, and the legal malpractice and breach of fiduciary duty causes of action fall within the broad scope of this provision (see Nasso v Loeb & Loeb, LLP, 19 AD3d 465; Stoll Am. Knitting Mach. v Creative Knitwear Corp., 5 AD3d 586).”