Hodges v. Reasonover, 103 So. 3d 1069

This case tests whether an attorney–client arbitration clause in a retainer can be enforced where the client sues for legal malpractice.
Louisiana and federal law favor arbitration, but attorney fiduciary duties demand full disclosure and candor in drafting/assessing arbitration terms.
Original (Aug. 2007) and revised (Aug. 2009) retainer agreements contained a broad arbitration clause to be in New Orleans under AAA rules.
District court held the clause was a prospective limitation on malpractice liability and unenforceable because Hodges lacked independent counsel; the court of appeal denied supervisory writs.
Majority holds arbitration can be enforceable if fair, with no improper limitation of liability and with full disclosure; in this case, the arbitration clause failed due to inadequate disclosures and is unenforceable; case is remanded for further proceedings.
Dissent and concurrence address peremption/traps and disclosure scope, but do not alter the majority’s ultimate disposition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the arbitration clause per se unenforceable in attorney–client disputes?	Hodges; arbitration is a permissible forum absent improper limitations.	Reasonover & Olinde; arbitration is acceptable if fair and does not limit liability.	Not per se; enforceable if fair and no substantive liability limit.
Does Rule 1.8(h)(1) prohibit mandatory arbitration absent independent representation?	Yes, requires independent representation to avoid prospective limitation.	No, arbitration can proceed if fair and properly disclosed.	Arbitration not automatically prohibited but disclosures must be complete.
Did defendants fail to disclose the scope and consequences of arbitration?	Yes; the clause did not detail malpractice coverage or consequences.	Disclosures were sufficient; client signed with independent review option.	Yes, disclosures were inadequate; clause unenforceable.
Does the arbitration clause impermissibly limit substantive liability or impose unduly burdensome procedures?	Clause potentially limits rights and imposes barriers to litigation.	Arbitration is a neutral forum with full relief possible under law.	No intrinsic substantive limit; but due to inadequate disclosure, unenforceable in this case.

Aguillard v. Auction Management Corp., 908 So.2d 1 (La. 2005) (strong policy favoring arbitration; resolution in favor of arbitration if arguable scope exists)
Moses H. Cone Memorial Hospital v. Mercury Constr. Co., 460 U.S. 1 (U.S. Supreme Court 1983) (federal liberal policy favoring arbitration; FAA preempts inconsistent state law)
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (U.S. Supreme Court 1985) (arbitration permits resolution of statutory claims in arbitral forum)
Teague v. St. Paul Fire and Marine Ins. Co., 974 So.2d 1266 (La. 2008) (attorney fiduciary duties; high standard of fidelity and candor)
Succession of Cloud, 530 So.2d 1146 (La. 1988) (ethics rules have force of substantive law in attorney conduct)