Susan R. Snow v. Bernstein, Shur, Sawyer & Nelson, P.A., 176 A.3d 729

In May 2012 Susan Snow signed an engagement letter with Bernstein, Shur, Sawyer & Nelson; the letter incorporated "Standard Terms of Engagement" that included a buried arbitration clause stating that "any other dispute" could be subject to binding arbitration.
Snow was not told, before or after signing, that the clause would require future malpractice claims to be arbitrated or was not given an explanation of arbitration’s consequences (jury waiver, discovery, appealability, etc.).
In August 2016 Snow sued the firm for legal malpractice and sought a jury trial; Bernstein moved to compel arbitration under the engagement agreement.
The Superior Court denied the motion to compel, concluding the firm had not obtained the client’s informed consent as required by Maine’s Rules of Professional Conduct and related ethics opinions, making the arbitration clause unenforceable as contrary to public policy.
The court also held that the Federal Arbitration Act did not preempt Maine’s rule requiring attorneys to obtain informed consent before prospectively requiring clients to arbitrate malpractice claims.
This appeal followed; the Supreme Judicial Court affirmed the Superior Court’s judgment.

Issue	Snow's Argument	Bernstein's Argument	Held
Whether an attorney must obtain a client’s informed consent before including a prospective malpractice-arbitration clause in an engagement agreement	Snow: Maine RPCs and ethics opinions require attorneys to fully explain scope/effect of arbitration clauses (including jury waiver, discovery limits, appeal rights); absent informed consent, clause violates public policy	Bernstein: Clause language was unambiguous and Snow’s signature made it enforceable	Held: Attorney must obtain informed consent about scope and effect; here Bernstein failed to do so, so clause unenforceable as contrary to public policy
Whether the Federal Arbitration Act preempts a state rule requiring attorneys to obtain informed consent before prospectively agreeing to arbitrate malpractice claims	Snow: Rule is grounded in fiduciary/ethical obligations and does not single out arbitration; not preempted	Bernstein: The rule impermissibly singles out arbitration and is preempted by the FAA	Held: Not preempted. The consent requirement applies from fiduciary duties and is not a rule that singles out arbitration for disfavored treatment under the FAA

Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681 (1996) (state law that singles out arbitration provisions is preempted by FAA)
Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425 (9th Cir. 2015) (contract defenses invalidating arbitration must not derive their meaning from the fact that an agreement to arbitrate is at issue)
Bezio v. Draeger, 737 F.3d 819 (1st Cir. 2013) (client’s experience with arbitration can affect whether consent to arbitration was informed)
Peaslee v. Pedco, Inc., 388 A.2d 103 (Me. 1978) (contracts may be rescinded where attorneys breach duty of loyalty by failing to disclose material interests)
Castillo v. Arrieta, 368 P.3d 1249 (N.M. Ct. App. 2016) (refusal to enforce malpractice-arbitration waiver where record unclear on whether informed consent obtained)
Westbrook Sch. Comm. v. Westbrook Teachers Ass’n, 404 A.2d 204 (Me. 1979) (courts ordinarily enforce arbitration agreements consistent with legislative policy favoring arbitration)