Friday, August 1, 2008
David Hricik at LEF highlights this important case in the Fifth Circuit and says it is one to watch--the story is likely not over. I second that, fwiw. Judge Dennis in dissent argues (correctly, to my mind) that the particular forum selection clause this lawyer had in the retainer agreement was overreaching, in light of the dynamics and obligations of the attorney-client relationship. The panel majority enforces the clause and dismisses.
I would add that ethics rules prohibiting the seeking of waiver of legal malpractice liability, long recognized in every jurisdiction (compare medical doctors!), should also make it wrong to impose burdensome conditions on a client-plaintiff who wants to sue. Whether this clause rises to that level is obviously a judgment call, but there can be no blanket rule that any forum selection clause in a retainer agreement is enforceable (nor does the majority suggest such a sweeping rule).