In Bezio v. Draeger, the First Circuit Court of Appeals affirmed the holding of the District Court of Maine that pre-dispute malpractice arbitration agreements are valid. In doing so, however, the First Circuit reached its holding on a more conservative rationale than the District Court. The District Court relied on the Federal Arbitration Act (“FAA”) preemption doctrine, while the First Circuit backpedaled from the District Court’s holding, instead relying on state ethical advisory opinions to reach its holding. With this switch in rationale, the First Circuit missed an opportunity to establish a doctrinal resolution to a jurisdictional split defined by state ethics advisory opinions and ABA ethics opinions. Therefore, while Bezio established the important holding that in Maine pre-dispute malpractice arbitration agreements are valid, the backpedaling of the First Circuit minimized the effect of the holding. Even though the First Circuit’s holding is consistent with the preemption doctrine, the First Circuit’s result is more a matter of happenstance than sound reasoning. This result likely serves as an inadvertent approval of reliance on state advisory opinions, which in their own right, at times, arguably create a threshold barrier to arbitration that conflicts with the FAA preemption doctrine.
Brian Cressman, Bezio v. Draeger: A Missed Opportunity for a Doctrinal Solution to the Jurisdictional Split as to the Arbitrability of Legal Malpractice Claims, 6 Y.B. Arb. & Mediation 359 (2014).