April 16, 2020 Top Story

Court Approves Arbitration Provision in Retainer Agreement

Circuit court holds that arbitration is not unconscionable

By Katherine M. Devanney

In a decision that broadly approves of arbitration, a U.S. court of appeals held that an unsophisticated plaintiff must arbitrate claims against the law firm that had represented her. In Plummer v. McSweeney, the U.S. Court of Appeals for the Eighth Circuit reversed a lower court’s decision that had held the arbitration provision in a retainer agreement was unconscionable and, therefore, not enforceable. ABA Section of Litigation leaders caution that lawyers seeking to use such provisions must ensure fulsome disclosure with their clients.

The plaintiff claimed she agreed to undergo the surgery under fraudulent circumstances.

The plaintiff claimed she agreed to undergo the surgery under fraudulent circumstances.

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Solicitation of Case Leads to Lawsuit

In the fall of 2014, Jerri Plummer, an Arkansas resident, received an unexpected call from a woman claiming that Plummer had been implanted with defective surgical mesh and could die if she did not have it removed. The caller connected her with a law firm that would help her obtain compensation for the surgery and related expenses. The surgery was not successful. Plummer ultimately sued numerous defendants in the legal and medical fields for fraud, fiduciary duty, malpractice, and related actions in the U.S. District Court for the Eastern District of Arkansas. One of the law firms that she sued moved to compel arbitration based on a provision in the retainer agreement requiring all disputes between the law firm and the plaintiff to be submitted to binding arbitration in Washington, D.C.

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