April 25, 2011
A Jury Question
The Maine Professional Ethics Commission has issued an opinion on the propriety of a waiver of right to a jury trial in a retainer asgreement in the event of a dispute between attorney and client. The bottom line:
The Commission concludes that a client’s informed consent to a jury trial waiver in an engagement agreement must be confirmed in writing and that prior to agreeing to such a limitation, the client must be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel. In contrast to arbitration agreements, there is no public policy favoring the waiver of jury trials, and a limitation that excludes the right to a jury trial has potentially serious constitutional dimensions. Hence, a jury trial waiver is of a commensurate level of importance with business transactions between lawyers and clients or the settlement of potential or actual claims for liability.
Clients range from extremely sophisticated business clients to those with limited mental capacity. What constitutes “informed consent” for different clients within that spectrum will, as a result, vary as will the resulting written confirmation. The sophisticated client will in all likelihood already understand that they can retain independent legal counsel when entering into an engagement agreement as they can with any other contractual arrangement. It costs nothing to inform that client of the desirability of doing so in the context of a jury waiver agreement, while for those clients who would have difficulty evaluating the desirability of such an agreement before a dispute has arisen, it emphasizes to them the importance of the issue.
The answer to the question posed is therefore that while the Maine Rules of Professional Conduct do not prohibit engagement agreements from stating that “[i]n the event that a dispute between us ends up in court, both parties agree that it shall be tried exclusively in a court in Maine without a jury,” they do require that the client be fully informed as to the scope and effect of a jury waiver, that the client’s informed consent be confirmed in writing, and that the client be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel prior to entering into such an agreement.
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