final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No.
Garven, Coral Springs, for appellant.
Katherine L. Corrigan of KLC Law P.A., Fort Lauderdale, for
plaintiff, Lindsay Owens, appeals a final order dismissing
her legal malpractice complaint on the ground that the
parties entered into an agreement to arbitrate the dispute.
We reverse, finding that the arbitration clause in the
retainer agreement was unenforceable for violating the Rules
Regulating the Florida Bar.
plaintiff filed a three-count legal malpractice action
against the defendants, Katherine Corrigan, Esq., and the law
firm KLC Law, P.A., alleging that the defendants negligently
represented her in a dependency case, causing her to lose
custody of her children.
defendants moved to dismiss the complaint, asserting that the
plaintiff had signed a retainer agreement requiring her to
submit the dispute to binding arbitration. The retainer
agreement included the following arbitration clause:
Any controversy, dispute or claim arising out of or relating
to our fees, charges, performance of legal services,
obligations reflected in this letter, or other aspects of our
representation shall be resolved through binding arbitration
in Broward County, Florida, in accordance with the Fee
Arbitration Rule (Chapter 14) of the Rules Regulating the
Florida Bar, and judgment on the award may be entered in any
court having jurisdiction thereof. [YOU ACKNOWLEDGE THAT BY
AGREEING TO ARBITRATION YOU ARE RELINQUISHING YOUR RIGHT TO
BRING AN ACTION IN COURT AND TO A JURY TRIAL.]
plaintiff filed a response in opposition to the motion to
dismiss. First, the plaintiff argued that the arbitration
clause was "vague and ambiguous" because the phrase
"performance of legal services" was included within
a reference to fees and charges, and because the arbitration
clause stated that arbitration would be in accordance with
the Fee Arbitration Rule. Second, the plaintiff argued that
the arbitration clause was unenforceable because the retainer
agreement did not comply with the Florida Bar Rule 4-1.5(i),
which prohibits lawyers from making an agreement with a
client for mandatory arbitration of fee disputes without
advising the client in writing that the client should
consider obtaining independent legal advice.
hearing on the motion to dismiss, the plaintiff's trial
counsel seemed to concede (albeit incorrectly) that the fee
arbitration program established in Chapter 14 of the Florida
Bar Rules allowed arbitration of legal malpractice
claims. Relying on the plaintiff's
counsel's concession, the trial court granted the motion
to dismiss and reasoned: "If Chapter 14 strictly said,
you know, we only arbitrate fee disputes, then I think [the
plaintiff] would be right. But Chapter 14 does not just
arbitrate fees, it arbitrates all grievances."
trial court later entered a final order of dismissal, finding
that the parties "entered into an agreement to arbitrate
that was not waived."
plaintiff moved for rehearing, pointing out for the first
time that jurisdiction to arbitrate under Chapter 14 was
limited to disputes over the entitlement to or amount of
legal fees. Thus, the plaintiff argued that her only
available forum was the Florida judicial system, and that a
denial of access to that forum would be a denial of due
trial court denied the plaintiff's motion for rehearing.
This appeal ensued.
appeal, the plaintiff argues that: (1) the trial court's
order violated her right to due process by denying her a
proper forum for redress of grievances; (2) the arbitration
agreement is unenforceable because it violated Florida Bar
Rule 4-1.5(i) by omitting the cautionary notice required
under that rule; and (3) the arbitration provision was
ambiguous as to whether it required arbitration of a legal
address the plaintiff's second argument, which we find to
standard of review applicable to a trial court's
conclusions regarding the construction and validity of an
arbitration agreement is de novo. United HealthCare of
Fla., Inc. v. Brown, 984 So.2d 583, 585 (Fla. 4th DCA