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A federal district court in California denied an attorney’s motion to compel arbitration of a legal malpractice dispute because only one of the two signed retainer agreements contained an arbitration clause.
In Lau v. Antonio Silva, P.C., No. Civ. S-04-2351 WBS PAN (GGH) PS, 2006 WL 2382266 (E.D. Cal. Aug. 17, 2006), Lau sued Silva, his former attorney, for legal malpractice. Silva moved to compel arbitration pursuant to a clause in one of the two retainer agreements signed by Lau. In opposing the motion, Lau argued that the arbitration clause was unenforceable because of procedural unconscionability.
The Court denied the motion on separate grounds, concluding that there was no agreement to arbitrate because Lau “was given two distinct contracts to sign, only one of which contained the arbitration clause at issue.” In reaching this conclusion, the Court noted its refusal to “stitch the differing contracts together so that [Silva], the drafter of the contracts, c[ould] pick and choose among the different provisions as to what may be enforced.”
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