Lawyers recognize that the potential for a significant verdict in a legal malpractice case is a real and present danger because most jurors have a dim view of lawyers.  Resultantly, many lawyers include a provision in their engagement letters that requires all disputes evolving out of the attorney/client relationship to be decided by arbitration.  Some of these lawyers are creating a second tier of protection by including language in these clauses that requires the arbitrator and not the court to  have exclusive authority to resolve controversies relating to the interpretation, applicability or enforcement of the arbitration clause.

In a case titled Rent-A-Center West, Inc. v. Jackson, an arbitration clause which provided the arbitrator with the sole authority to adjudicate all issues associated with the clause, found its way to the United States Supreme Court.  In that case Jackson filed a discrimination suit against his former employer Rent-A-Center.  The employer filed a motion to dismiss the complaint to remove the controversy to arbitration.  Jackson resisted the application by contending that the clause was unconscionable.  At the trial level the Court sustained the employer’s decision and dismissed the complaint.  The case was appealed.  There the court determined that, although the language of the arbitration clause clearly assigned all decision-making to the arbitrator, questions of unconsciousability, however, resided in the solely within the court’s jurisdiction.

On appeal to the Supreme Court it was held that the issue of unconsciousability had to be decided by the arbitrator and not the court, given the express terms of the arbitration clause.  The Supreme Court also noted that the arbitration agreement was really two separate contractual terms.  One required arbitration as to  all disputes relating to the employer-employee relationship and the second related to questions of enforceability, including issues whether the agreement was unconscionable.