MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	239	
Docket:	   Cum-17-54	
Argued:	   October	25,	2017	
Decided:	  December	21,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              SUSAN	R.	SNOW	
                                     	
                                    v.	
                                     	
                BERNSTEIN,	SHUR,	SAWYER	&	NELSON,	P.A.,	et	al.	
	
	
JABAR,	J.		

      [¶1]	 	 Bernstein,	 Shur,	 Sawyer	 &	 Nelson,	 P.A.,	 and	 J.	 Colby	 Wallace	

(collectively,	 Bernstein)	 appeal	 from	 a	 Superior	 Court	 (Cumberland	 County,	

Warren,	 J.)	 order	 denying	 its	 motion	 to	 compel	 arbitration	 in	 a	 legal	

malpractice	 claim	 filed	 against	 it.	 	 Bernstein	 contends	 that	 the	 court	 erred	

when	 it	 concluded	 that	 Bernstein	 failed	 to	 obtain	 informed	 consent	 from	 its	

client,	 Susan	 Snow,	 to	 submit	 malpractice	 claims	 to	 arbitration,	 and	 that	

federal	 law	 does	 not	 preempt	 a	 rule	 requiring	 attorneys	 to	 obtain	 such	

informed	 consent	 from	 their	 clients.	 	 We	 agree	 with	 the	 Superior	 Court	 and	

affirm	the	judgment.	
2	

                                      I.		BACKGROUND	

         [¶2]	 	 The	 following	 undisputed	 facts	 are	 set	 forth	 in	 Snow	 and	

Bernstein’s	opposing	affidavits	filed	in	conjunction	with	Bernstein’s	motion	to	

compel	arbitration	and	Snow’s	motion	to	stay	arbitration.	

         [¶3]		In	May	2012,	Susan	Snow	retained	Bernstein	to	represent	her	in	a	

civil	 action.	 	 The	 firm	 presented	 for	 Snow’s	 signature	 an	 engagement	 letter	

that,	 inter	 alia,	 set	 forth	 the	 scope	 of	 its	 representation.	 	 Located	 on	 the	 last	

page	 of	 that	 letter	 was	 a	 signature	 line,	 above	 which	 a	 bold-faced	 sentence	

provided:	 “I	 agree	 to	 the	 terms	 of	 this	 letter	 including	 the	 attached	 standard	

terms	 of	 engagement.”	 	 Bernstein	 attached	 a	 document	 to	 the	 engagement	

letter	 titled	 “Standard	 Terms	 of	 Engagement	 for	 Legal	 Services.”	 	 The	

provision	 at	 the	 heart	 of	 this	 dispute	 is	 found	 on	 the	 last	 page	 of	 that	

document	 and	 is	 titled	 “Arbitration.”	 	 That	 provision	 provides,	 in	 pertinent	

part:	

         If	 you	 disagree	 with	 the	 amount	 of	 our	 fee,	 please	 take	 up	 the	
         question	 with	 your	 principal	 attorney	 contact	 or	 with	 the	 firm’s	
         managing	partner.		Typically,	such	disagreements	are	resolved	to	
         the	 satisfaction	 of	 both	 sides	 with	 little	 inconvenience	 or	
         formality.		In	the	event	of	a	fee	dispute	that	is	not	readily	resolved,	
         you	 shall	 have	 the	 right	 to	 submit	 the	 fee	 dispute	 to	 arbitration	
         under	 the	 Maine	 Code	 of	 Professional	 Responsibility.	 	 Any	 fee	
         dispute	that	you	do	not	submit	to	arbitration	under	the	Maine	Code	
         of	Professional	Responsibility,	and	any	other	dispute	that	arises	out	
         of	 or	 relates	 to	 this	 agreement	 or	 the	 services	 provided	 by	 the	 law	
                                                                                                     3	

         firm	shall	also,	at	the	election	of	either	party,	be	subject	to	binding	
         arbitration.		Either	party	may	request	such	arbitration	by	sending	
         a	 written	 demand	 for	 arbitration	 to	 the	 other.	 	 If	 a	 demand	 for	
         arbitration	is	made,	you	and	the	firm	shall	attempt	to	agree	on	a	
         single	arbitrator.		If	no	agreement	can	be	reached	within	30	days	
         of	 the	 receipt	 of	 the	 demand,	 the	 party	 demanding	 arbitration	
         may	 designate	 an	 arbitrator	 by	 sending	 a	 written	 notice	 to	 the	
         other	 party.	 	 Within	 two	 weeks	 of	 that	 initial	 designation,	 the	
         other	 party	 shall	 designate	 an	 arbitrator	 in	 writing.	 	 Thereafter,	
         those	 two	 designated	 arbitrators	 shall	 meet	 promptly	 to	 select	 a	
         third	 arbitrator.	 	 The	 arbitrators	 shall	 conduct	 the	 arbitration	
         proceedings	 according	 to	 the	 procedures	 under	 the	 commercial	
         arbitration	rules	of	the	American	Arbitration	Association	and	shall	
         hold	the	arbitration	hearing	in	Maine.	.	.	.		Either	party	shall	have	
         the	 right	 to	 appeal	 a	 decision	 of	 the	 arbitrators	 on	 the	 grounds	
         that	the	arbitrators	failed	to	properly	apply	the	law.			
	
(Emphasis	added.)			
	
	   [¶4]		Snow	subsequently	signed	the	last	page	of	the	engagement	letter.1		

At	 no	 time—before	 or	 after	 signing	 the	 letter—did	 Bernstein	 explain	 to	 her	

that,	 by	 providing	 her	 signature,	 she	 was	 agreeing	 to	 submit	 any	 future	

malpractice	claims	against	the	firm	to	binding	arbitration.			

	        [¶5]		In	August	2016,	Snow	filed	a	complaint	and	jury	demand	against	

Bernstein	 alleging	 that	 the	 firm	 committed	 legal	 malpractice	 in	 connection	

with	 its	 handling	 of	 her	 case.	 	 Shortly	 after,	 Snow	 filed	 a	 motion	 to	 stay	

threatened	arbitration	pursuant	to	14	M.R.S.	§	5928(2)	(2016).		In	response,	


    1	
    	 The	 scope	 of	 the	 agreement	 was	 later	 amended,	 but	 the	 arbitration	 provision	 was	 left	
unchanged.			
4	

relying	on	the	arbitration	provision	in	the	engagement	letter,	Bernstein	filed	a	

motion	to	compel	arbitration.		

	         [¶6]		The	court	denied	Bernstein’s	motion	and	granted	Snow’s.		Relying	

on	 the	 Maine	 Rules	 of	 Professional	 Conduct,	 comments	 to	 those	 Rules,	 and	

opinions	 of	 the	 Maine	 Professional	 Ethics	 Commission	 that	 interpreted	 the	

Rules,	 the	 court	 concluded	 that,	 to	 include	 an	 agreement	 to	 arbitrate	 future	

malpractice	 claims	 against	 the	 firm	 in	 an	 engagement	 letter,	 Bernstein	 was	

obligated	 to	 fully	 inform	 Snow	 of	 the	 scope	 and	 effect	 of	 that	 agreement.		

Because	Bernstein	had	failed	to	obtain	informed	consent,	the	court	concluded	

that	 the	 arbitration	 provision	 violated	 public	 policy	 and	 was	 therefore	

unenforceable.	 	 The	 court	 further	 concluded	 that,	 because	 an	 attorney’s	

obligation	to	obtain	the	informed	consent	of	his	clients	does	not	apply	solely	

to	arbitration	agreements,	requiring	informed	consent	in	this	context	was	not	

preempted	 by	 the	 Federal	 Arbitration	 Act	 (FAA),	 9	 U.S.C.S.	 §§	 1-307	 (LEXIS	

through	 Pub.	 L.	 No.	 115-90).	 	 Neither	 party	 moved	 for	 additional	 findings	 of	

fact	 pursuant	 to	 M.R.	 Civ.	P.	52(b).	 	 Bernstein’s	 timely	 appeal	 followed.	 	 See	

14	M.R.S.	§	5945(1)(A)	(2016),	(B);	M.R.	App.	P.	2(b)(3)	(Tower	2016).2	



     2	 	 The	 restyled	 Maine	 Rules	 of	 Appellate	 Procedure	 do	 not	 apply	 because	 this	 appeal	 was	 filed	

prior	to	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).	
                                                                                                            5	

                                            II.		DISCUSSION	

A.       Standard	of	Review	

         [¶7]		“We	review	the	denial	of	a	motion	to	compel	arbitration	for	errors	

of	law	and	for	facts	not	supported	by	substantial	evidence	in	the	record.”		Saga	

Commc’ns	 of	 New	 England,	 Inc.	 v.	 Voornas,	 2000	 ME	 156,	 ¶	 7,	 756	A.2d	 954.		

Here,	the	facts	before	the	Superior	Court	were	set	out	in	affidavits	executed	by	

Snow	 and	 Bernstein.	 	 Because	 those	 affidavits	 did	 not	 contain	 any	 disputed	

facts,	 we	 determine	 de	 novo	 whether	 the	 court	 made	 any	 errors	 of	 law	 and	

whether	the	court’s	conclusion	is	supported	by	the	facts.		See	id.	

         [¶8]	 	 This	 appeal	 requires	 us	 to	 determine	 whether	 the	 court	 erred	

when	 it	 concluded	 that	 (1)	 Bernstein’s	 failure	 to	 obtain	 informed	 consent	

from	 Snow	 regarding	 an	 arbitration	 provision	 rendered	 that	 provision	

unenforceable	as	contrary	to	public	policy,	and	(2)	the	Federal	Arbitration	Act	

does	not	preempt	a	requirement	that	attorneys	obtain	informed	consent	from	

their	clients	before	contracting	to	submit	disputes	to	arbitration.3		




     3		Bernstein	also	argues	that	the	court	misapplied	the	burden	of	proof	by	requiring	it	to	prove	

that	 the	 arbitration	 provision	 was	 enforceable.	 	However,	 Bernstein	 has	 only	 raised	that	 issue	 for	
the	first	time	on	appeal.		Thus,	the	issue	is	not	properly	preserved	and	is	deemed	waived.		See	Cyr	v.	
Cyr,	432	A.2d	793,	797	(Me.	1981).		
6	

B.     Enforceability	of	Agreement	to	Arbitrate	

       [¶9]	 	 Bernstein	 argues	 that	 the	 court	 erred	 in	 concluding	 that	 the	

arbitration	 provision	 concerning	 malpractice	 claims	 against	 the	 firm,	

contained	 in	 the	 engagement	 letter	 that	 Snow	 signed,	 is	 contrary	 to	 public	

policy	 and	 therefore	 unenforceable.	 	 Snow	 counters	 that	 the	 court	 correctly	

determined	 that	 public	 policy—as	 set	 forth	 in	 Maine’s	 Rules	 of	 Professional	

Conduct—required	 Bernstein	 to	 “communicate	 adequate	 information	 and	

explanation	to	obtain	[Snow’s]	informed	consent	to	an	arbitration.”		According	

to	 Snow,	 Bernstein’s	 failure	 to	 obtain	 her	 informed	 consent	 rendered	 the	

arbitration	 agreement	 unenforceable.	 	 The	 parties’	 arguments	 before	 us	

center	 on	 two	 competing	 interests:	 the	 enforcement	 of	 arbitration	 contracts	

and	 the	 professional	 standards	 set	 forth	 in	 the	 Maine	 Rules	 of	 Professional	

Conduct.	

       1.     Maine’s	Uniform	Arbitration	Act	

       [¶10]		Maine’s	Uniform	Arbitration	Act	(MUAA),	14	M.R.S.	§§	5927-5949	

(2016),	 provides	 that	 “[a]	 written	 agreement	 .	 .	 .	 or	 a	 provision	 in	 a	 written	

contract	to	submit	to	arbitration	any	controversy	thereafter	arising	between	

the	parties	is	valid,	enforceable	and	irrevocable.”		14	M.R.S.	§	5927.		Given	the	

“Maine	legislature’s	strong	policy	favoring	arbitration,”	courts	will	ordinarily	
                                                                                             7	

enforce	 arbitration	 agreements	 “if	 the	 parties	 have	 generally	 agreed	 to	

arbitrate	disputes	and	if	the	party	seeking	arbitration	is	making	a	claim	which,	

on	its	face,	is	governed	[by	the	contract].”		Westbrook	Sch.	Comm.	v.	Westbrook	

Teachers	Ass’n,	404	A.2d	204,	207-08	(Me.	1979)	(quotation	marks	omitted).		

Despite	this	strong	presumption	in	favor	of	substantive	arbitrability,	see	V.I.P.,	

Inc.	 v.	 First	 Tree	 Dev.	 Ltd.	 Liab.	 Co.,	 2001	 ME	 73,	 ¶	 4,	 770	A.2d	 95,	 the	 MUAA	

provides	that	agreements	to	arbitrate	may	be	nullified	“upon	such	grounds	as	

exist	at	law	or	in	equity	for	the	revocation	of	any	contract,”	14	M.R.S.	§	5927.			

	      [¶11]	 	 One	 “such	 ground[]”	 upon	 which	 a	 court	 may	 invalidate	 an	

arbitration	 provision	 is	 where	 the	 agreement	 contravenes	 public	 policy.	 	 Id.;	

see	 Allstate	 Ins.	 Co.	 v.	 Elwell,	 513	 A.2d	 269,	 272	 (Me.	 1986)	 (“A	 contract	 that	

contravenes	 public	 policy	 will	 not	 be	 enforced	 by	 our	 courts.”);	 Corbin	 v.	

Houlehan,	 100	 Me.	 246,	 251,	 61	 A.	 131	 (1905)	 (“It	 is	 a	 fundamental	 and	

elementary	rule	of	the	common	law	that	courts	will	not	enforce	.	.	.	contracts	

which	are	contrary	to	public	policy	.	.	.	.”).		“A	contract	is	against	public	policy	

if	it	clearly	appears	to	be	in	violation	of	some	well	established	rule	of	law,	or	

that	its	tendency	will	be	harmful	to	the	interests	of	society.”		Elwell,	513	A.2d	

at	 272	 (quotation	 marks	 omitted);	 see	 also	 State	 Farm	 Mut.	 Auto.	 Ins.	 Co.	 v.	

Koshy,	 2010	 ME	 44,	 ¶¶	 42-44,	 995	A.2d	 651.	 	 The	 question	 before	 us,	
8	

therefore,	is	whether	an	attorney’s	failure	to	obtain	informed	consent	from	a	

client	 regarding	 an	 arbitration	 clause	 for	 any	 legal	 malpractice	 claim	 against	

that	attorney	is	contrary	to	public	policy.			

      2.     Public	Policy	as	Expressed	in	the	Rules	of	Professional	Conduct	

      [¶12]	 	 Because	 nullifying	 a	 private,	 written	 contract	 provision	 should	

not	be	undertaken	lightly,	we	look	carefully	at	the	argument	that	a	provision	

contravenes	an	important	public	policy.		The	policy	at	issue	here	concerns	the	

profession	of	law,	which	is	uniquely	within	the	purview	of	the	courts.	

      [¶13]	 	 Effective	 August	 1,	 2009,	 we	 adopted	 the	 Maine	 Rules	 of	

Professional	 Conduct,	 which	 are	 styled	 after	 the	 American	 Bar	 Association’s	

(ABA)	Model	Rules.		See	M.R.	Prof.	Conduct	preamble	(1).		Our	“acceptance	of	

these	rules	maximizes	conformity	with	those	states	embracing	the	ABA	Model	

Rules	and	also	preserves	the	integrity	of	the	manner	in	which	Maine	lawyers	

practice	law.”		Id.		Maine	Bar	Rule	8	establishes	the	Maine	Professional	Ethics	

Commission,	a	body	tasked	with	rendering	“advisory	opinions	to	[this]	Court,	

the	 Board,	 Bar	 Counsel,	 and	 the	 Grievance	 Commission	 on	 matters	 involving	

the	 interpretation	 and	 application	 of	 the	 Maine	 Rules	 of	 Professional	

Conduct.”		M.	Bar.	R.	8(d)(1).			
                                                                                        9	

	     [¶14]	 	 The	 Maine	 Rules	 of	 Professional	 Conduct	 do	 not	 explicitly	

address	the	issue	presented	by	this	appeal:	if,	and	to	what	extent,	an	attorney	

or	 law	 firm	 must	 inform	 a	 prospective	 client	 about	 the	 effect	 of	 a	 provision	

that	 prospectively	 requires	 the	 client	 to	 submit	 malpractice	 claims	 against	

that	attorney	or	firm	to	arbitration.		However,	interpretations	of	the	Rules	by	

both	 the	 Maine	 Professional	 Ethics	 Commission	 and	 the	 ABA,	 expressed	 in	

advisory	opinions,	indicate	that	for	such	a	provision	to	comply	with	the	Rules,	

the	client	must	be	fully	informed	of	its	scope	and	effect.	

	     [¶15]		In	1999,	the	Maine	Professional	Ethics	Commission	concluded	in	

an	Opinion	that	attorneys	may	enter	into	agreements	to	arbitrate	malpractice	

claims	 arising	 out	 of	 the	 attorney-client	 relationship	 and	 that,	 for	 such	 an	

agreement	 to	 be	 enforceable,	 an	 attorney	 need	 not	 advise	 the	 client	 to	 seek	

independent	 counsel	 to	 discuss	 the	 desirability	 of	 entering	 into	 such	 an	

agreement.	 Me.	 Prof.	 Ethics	 Comm’n,	 Op.	 No.	 170	 (Dec.	 23,	 1999).	 	 However,	

the	 opinion	 did	 not	 address	 whether,	 and	 to	 what	 extent,	 the	 attorney	 must	

inform	the	client	of	the	scope	and	effect	of	those	agreements.		See	id.	

	     [¶16]		More	than	two	years	later,	the	ABA	Standing	Committee	on	Ethics	

and	Professional	Responsibility	issued	a	formal	opinion	in	which	it	addressed	

whether,	 under	 the	 Model	 Rules	 of	 Professional	 Conduct,	 an	 attorney	 has	 a	
10	

duty	to	inform	a	client	of	the	existence	and	effect	of	a	provision	contained	in	a	

retainer	agreement	that	requires	the	client	to	submit	any	malpractice	claims	

against	 the	 firm	 to	 binding	 arbitration.	 	 ABA	 Comm’n	 on	 Ethics	 &	Prof’l	

Responsibility,	Formal	Op.	02-425	(2002).		The	Standing	Committee	answered	

that	 question	 in	 the	 affirmative,	 concluding	 that	 because	 attorneys	 serve	 as	

fiduciaries	to	their	clients,	and	because	agreeing	to	arbitration	often	results	in	

a	client	waiving	significant	rights,	an	attorney	must	“explain	the	implications	

of	 the	 proposed	 binding	 arbitration	 provision	 to	 the	 extent	 reasonably	

necessary	to	permit	the	client	to	make	an	informed	decision	about	whether	to	

agree	to	the	inclusion	of	the	binding	arbitration	provision	in	the	agreement.”		

Id.	 (alteration	 omitted)	 (quotation	 marks	 omitted).	 	 To	 fulfill	 this	 duty,	 the	

Committee	announced,	a	lawyer	should	

       explain	the	possible	adverse	consequences	as	well	as	the	benefits	
       arising	from	execution	of	the	agreement.		For	example,	the	lawyer	
       should	make	clear	that	arbitration	typically	results	in	the	client’s	
       waiver	 of	 significant	 rights,	 such	 as	 the	 waiver	 of	 right	 to	 a	 jury	
       trial,	 the	 possible	 waiver	 of	 broad	 discovery,	 and	 the	 loss	 of	 the	
       right	to	appeal.	
       	
Id.	

	      [¶17]	 	 In	 2011,	 Maine’s	 Professional	 Ethics	 Commission	 issued	 an	

Opinion	that	addressed	a	similar	issue.		See	Me.	Prof.	Ethics	Comm’n,	Op.	No.	

202	(Jan.	9,	2011).		The	Commission	determined	that,	when	an	attorney	seeks	
                                                                                        11	

to	 include	 in	 an	 engagement	 letter	 a	 provision	 waiving	 the	 client’s	 right	 to	 a	

jury	trial	for	claims	arising	out	of	the	attorney’s	representation,	that	attorney	

must	obtain	the	client’s	informed	consent	in	order	to	comply	with	the	Rules	of	

Professional	 Conduct.	 	 Id.	 	 The	 Commission	 reasoned	 that	 “[l]anguage	 in	 an	

engagement	 agreement	 waiving	 the	 right	 to	 a	 jury	 trial,	 like	 a	 limitation	 on	

venue	 or	 a	 requirement	 to	 arbitrate	 disputes	 between	 lawyer	 and	 client,	

involves	 the	 means	 of	 resolving	 disputes.”	 	 Id.	 	 Noting	 these	 similarities,	 the	

Commission	relied	on	comment	14	to	Maine	Rule	of	Professional	Conduct	1.8,	

which	provides	that	an	attorney	may	permissibly	enter	into	an	agreement	to	

prospectively	 submit	 malpractice	 claims	 to	 arbitration	 if	 “the	 client	 is	 fully	

informed	 of	 the	 scope	 and	 effect	 of	 the	 agreement.”	 	 Id.	 (citing	 M.R.	 Prof.	

Conduct	 1.8	 cmt.	 (14)).	 	 For	 that	 reason,	 the	 Commission	 concluded	 that	 an	

attorney	 must	 obtain	 “informed	 consent	 as	 to	 the	 scope	 and	 effect	 of	 an	

arbitration	 requirement	 or	 a	 jury	 waiver	 clause.”	 	 Id.	 	 According	 to	 the	

Commission,	 this	 result	 was	 warranted	 in	 light	 of	 an	 attorney’s	 obligation	 to	

render	 candid	 advice	 and	 inform	 the	 client	 on	 matters	 “to	 the	 extent	

reasonably	 necessary	 to	 permit	 the	 client	 to	 make	 informed	 decisions	

regarding	the	representation.”		Id.	(citing	M.R.	Prof.	Conduct	1.4(b));	see	M.R.	

Prof.	 Conduct	 2.1;	 see	 also	 Sargent	 v.	 Buckley,	 1997	 ME	 159,	 ¶	 9,	 697	A.2d	
12	

1272	 (“[A]n	 attorney	 and	 client	 necessarily	 share	 a	 fiduciary	 relationship	 of	

the	highest	confidence.”	(quotation	marks	omitted)).			

	        [¶18]	 	 The	 above-cited	 rules,	 together	 with	 the	 guidance	 provided	 by	

Maine’s	Professional	Ethics	Commission	and	by	the	ABA’s	Standing	Committee	

on	Ethics,4	reflect	the	following	policy:	to	enforce	a	contractual	provision	that	

prospectively	 requires	 a	 client	 to	 submit	 malpractice	 claims	 against	 the	 law	

firm	to	arbitration,	an	attorney	must	have	first	obtained	the	client’s	informed	

consent	as	to	the	scope	and	effect	of	that	provision.		This	policy	is	based	on	the	

long-standing	 principle	 that	 attorneys	 owe	 a	 fiduciary	 duty	 of	 “undivided	

loyalty”	to	their	clients,	a	duty	that	is	derived	from	the	common	law	and	that	

“predate[s]	 and	 exist[s]	 despite	 independent,	 codified	 ethical	 standards.”		

Sargent,	 1997	 ME	 159,	 ¶	 9,	 697	 A.2d	 1272	 (quotation	 marks	 omitted).	 	 This	

policy	is	also	rooted	in	Maine’s	“broad	constitutional	guarantee	of	a	right	to	a	

jury”	 trial	 in	 civil	 matters.	 	 DiCentes	 v.	 Michaud,	 1998	ME	 227,	 ¶	 7,	 719	 A.2d	


    4	 	 Bernstein	 argues	 that	 neither	 the	 comments	 to	 the	 Rules	 of	 Professional	 Conduct	 nor	 the	

Commission’s	 interpretation	 of	 the	 Rules	 can	 constitute	 public	 policy	 because—unlike	 the	 Rules	
themselves—we	 have	 not	 explicitly	 adopted	 them.	 	 However,	 this	 argument	 ignores	 the	 fact	 that	
the	 Maine	 Rules	 are	 modeled	 after	 the	 ABA	 Model	 Rules	 and	 that,	 on	 several	 occasions,	 we	 have	
utilized	 these	 authorities	 to	 interpret	 the	 Rules.	 	 See,	 e.g.,	 Bd.	 of	 Overseers	 of	 the	 Bar	 v.	 Warren,	
2011	ME	124,	¶	26,	34	A.3d	1103;	Corey	v.	Norman,	Hanson	&	DeTroy,	1999	ME	196,	¶	20,	742	A.2d	
933	(adopting	a	rule	that	“is	consistent	with	the	rule	adopted	by	the	[ABA’s]	committee	on	Ethics	
and	 Professional	 Responsibility”);	 see	 also	 M.R.	 Prof.	 Conduct	 preamble	 (1).	 	 Moreover,	 although	
Maine	 Professional	 Ethics	 Commission	 opinions	 are	 not	 binding,	 they	 are	 promulgated	 by	 a	 body	
created	for	the	purpose	of	rendering	opinions	that	interpret	the	Rules	of	Professional	Conduct.		See	
M.	Bar	R.	8(d)(1).			
                                                                                       13	

509	 (quotation	 marks	 omitted);	 see	 Me.	 Const.	 art.	 I,	 §	 20.	 	 Therefore,	 given	

these	 considerations,	 it	 follows	 that	 a	 heightened	 standard	 is	 required	 when	

an	attorney—with	whom	a	client	has	a	fiduciary	relationship—seeks	to	have	

that	 client	 waive	 a	 fundamental	 right	 through	 a	 provision	 in	 an	 engagement	

letter.		See	Castillo	v.	Arrieta,	368	P.3d	1249,	1257	(N.M.	Ct.	App.	2016)	(“We	

conclude	that	if	an	attorney	is	going	to	require	his	client,	within	the	context	of	

their	 relationship	 of	 trust,	 to	 waive	 the	 right	 to	 a	 jury	 trial	 for	 a	 future	

malpractice	dispute,	such	a	waiver	should	be	made	knowingly	with	the	client’s	

informed	consent.”).			

	     [¶19]	 	 Accordingly,	 we	 now	 implement	 the	 public	 policy	 reflected	 by	

Maine	 Rule	 of	 Professional	 Conduct	 1.8	 cmt.	 (14)	 and	 the	 opinions	 of	 the	

Maine	 and	 ABA	 Ethics	 Commissions.	 	 Maine	 attorneys	 must	 obtain	 a	 client’s	

informed	consent	regarding	the	scope	and	effect	of	any	contractual	provision	

that	 prospectively	 requires	 the	 client	 to	 submit	 malpractice	 claims	 against	

those	attorneys	to	arbitration.		See	M.R.	Prof.	Conduct	1.8	cmt.	(14).		To	obtain	

the	 client’s	 informed	 consent,	 the	 attorney	 must	 effectively	 communicate	 to	

the	 client	 that	 malpractice	 claims	 are	 covered	 under	 the	 agreement	 to	

arbitrate.	 	 The	 attorney	 must	 also	 explain,	 or	 ensure	 that	 the	 client	

understands,	 the	 differences	 between	 the	 arbitral	 forum	 and	 the	 judicial	
14	

forum,	including	the	absence	of	a	jury	and	such	“procedural	aspects	of	forum	

choice	such	as	timing,	costs,	appealability,	and	the	evaluation	of	evidence	and	

credibility.”		Me.	Prof.	Ethics	Comm’n,	Op.	No.	202.		Furthermore,	to	ensure	the	

client	is	informed	“to	the	extent	reasonably	necessary	to	permit	the	client	to	

make	 [an]	 informed	 decision[],”	 the	 attorney	 should	 take	 into	 account	 the	

particular	 client’s	 capacity	 to	 understand	 that	 information	 and	 experience	

with	 the	 arbitration	 process,	 as	 these	 factors	 may	 affect	 both	 the	 breadth	 of	

information	and	the	amount	of	detail	the	attorney	is	obligated	to	provide.		See	

M.R.	 Prof.	Conduct	1.4(b);	 Bezio	 v.	 Draeger,	 737	 F.3d	 819,	 823,	 825	 (1st	 Cir.	

2013)	(noting	that,	although	the	degree	to	which	an	attorney	must	explain	a	

matter	“will	vary	by	client,”	the	appellant	seeking	to	invalidate	an	arbitration	

clause	 in	 that	 case	 “knew	 very	 well	 from	 his	 past	 experience	 with	

.	.	.	arbitrations	 what	 arbitration	 was	 and	 the	 consequences	 of	 signing	 such	 a	

clause”).	

      3.     Agreement	to	Arbitrate	

      [¶20]	 	 Reviewing	 the	 undisputed	 facts	 before	 us,	 we	 conclude	 that	

Bernstein	did	not	fully	inform	Snow	of	the	scope	and	effect	of	the	agreement	

to	arbitrate.		In	her	affidavit	to	the	Superior	Court,	Snow	stated	that	Bernstein	

did	 not	 (1)	inform	 her	 that	 the	 engagement	 letter	 contained	 an	 arbitration	
                                                                                    15	

provision,	 (2)	 explain	 to	 her	 the	 scope	 of	 that	 arbitration	 provision,	 or	

(3)	explain	to	her	the	differences	between	the	arbitral	forum	and	the	judicial	

forum.		Bernstein	did	not	dispute	these	assertions	in	its	own	affidavit.		Snow	

also	 averred	 that	 Bernstein	 failed	 to	 inform	 her	 that,	 by	 signing	 the	

engagement	 letter,	 she	 was	 waiving	 her	 right	 to	 resolve	 disputes	 against	

Bernstein	through	the	court	system,	including	the	right	to	trial	by	jury.		This	

assertion	is	also	undisputed.			

      [¶21]	 	 Instead,	 Bernstein	 argues	 that	 the	 language	 of	 the	 arbitration	

provision—providing,	 in	 part,	 that	 “any	 other	 dispute	 that	 arises	 out	 of	 or	

relates	to	this	agreement	or	the	services	provided	by	the	law	firm	shall	also,	at	

the	 election	 of	 either	 party,	 be	 subject	 to	 binding	 arbitration”—

unambiguously	 informed	 Snow	 of	 the	 scope	 and	 effect	 of	 the	 agreement	 to	

arbitrate.	 	 Read	 in	 context,	 however,	 the	 arbitration	 provision	 was	 not	

sufficiently	 clear	 to	 inform	 her	 that	 she	 was	 agreeing	 to	 submit	 malpractice	

claims	against	her	attorney	to	arbitration,	let	alone	to	inform	her	of	the	scope	

and	effect	of	any	such	agreement.		The	first	three	sentences	of	the	arbitration	

provision	directly	pertained	to	fee	disputes.		Aside	from	fee	disputes,	no	other	

form	 of	 proceeding	 or	 conflict	 is	 mentioned	 with	 any	 specificity	 in	 the	

arbitration	provision.			
16	

      [¶22]		Rather,	the	text	purporting	to	require	parties	to	submit	“any	other	

dispute”	to	binding	arbitration	is	preceded	by	a	more	specific	directive:	“Any	

fee	 dispute	 that	 you	 do	 not	 submit	 to	 arbitration	 under	 the	 Code	 of	

Professional	Responsibility,	and	any	other	dispute	that	arises	.	.	.	shall	.	.	.	be	

subject	 to	 binding	 arbitration.”	 	 Pursuant	 to	 the	 interpretive	 principle	 of	

ejusdem	 generis,	 “the	 meaning	 of	 a	 general	 term	 in	 a	 contract	 is	 limited	 by	

accompanying	 specific	 illustrations.	 	 Thus,	 any	 meaning	 given	 to	 the	 general	

term	must	have	a	reasonable	degree	of	similarity”	to	the	more	specific	term.		

5	Margaret	N.	Kniffin,	Corbin	on	Contracts	§	24.28	at	309	(rev.	ed.	1998);	see	

New	Orleans	Tanker	Corp.	v.	Dep’t	of	Transp.,	1999	ME	67,	¶	7,	728	A.2d	673.		

As	 such,	 the	 meaning	 of	 the	 term	 “any	 other	 dispute”	 may	 be	 reasonably	

interpreted	as	limited	by	the	provision’s	reference	to	“fee	dispute.”		Moreover,	

although	 the	 engagement	 letter	 specified	 such	 aspects	 of	 the	 parties’	

relationship	as	scope	of	representation,	fees	and	expenses,	and	termination	of	

the	 attorney-client	 relationship,	 the	 letter	 itself	 failed	 to	 specifically	

emphasize	 that	 disputes	 against	 Bernstein	 regarding	 its	 legal	 services	 would	

be	subject	to	arbitration.		To	the	contrary,	the	arbitration	provision	was	only	

incorporated	by	way	of	the	engagement	letter’s	reference	to	“Standard	Terms	
                                                                                       17	

of	 Engagement,”	 and	 even	 then,	 it	 was	 buried	 on	 the	 last	 page	 of	 that	

document.		

      [¶23]	 	 For	 these	 reasons,	 the	 undisputed	 evidence	 supports	 the	

conclusion	that	Bernstein	did	not	fully	inform	Snow	as	to	the	scope	and	effect	

of	 the	 agreement	 to	 arbitrate,	 as	 is	 required	 by	 the	 Maine	 Rules	 of	

Professional	Conduct	and	the	Maine	Professional	Ethics	Commission	opinions	

interpreting	 those	 Rules.	 	 Therefore,	 the	 Superior	 Court	 did	 not	 err	 in	

concluding	 that	 the	 arbitration	 provision	 was	 unenforceable	 for	 violating	

public	 policy.	 	 Cf.	 Peaslee	 v.	 Pedco,	 Inc.,	 388	 A.2d	 103,	 107	 (Me.	 1978)	

(affirming	the	rescission	of	a	contract	where	an	attorney	breached	his	duty	of	

loyalty	 by	 failing	 to	 disclose	 his	 personal	 interest	 in	 a	 transaction	 involving	

clients);	see	Castillo,	368	P.3d	at	1256-58	(refusing	to	enforce	an	agreement	to	

arbitrate	malpractice	claims,	despite	the	state’s	“strong	public	policy	favoring	

arbitration,”	 where	 the	 record	 was	 unclear	 as	 to	 whether	 the	 attorney	

obtained	informed	consent).	

C.    Federal	Arbitration	Act	Preemption	

      [¶24]	 	 Bernstein	 also	 argues	 that,	 even	 assuming	 Maine	 attorneys	 are	

obligated	to	obtain	informed	consent	from	their	clients	regarding	arbitration	
18	

provisions,	such	an	obligation	“singles	out”	arbitration	agreements	and	is	thus	

preempted	by	the	Federal	Arbitration	Act	(FAA).			

	      [¶25]	 	 The	 FAA,	 like	 the	 MUAA,	 provides	 that	 written	 arbitration	

agreements	are	“valid,	irrevocable,	and	enforceable,	save	upon	such	grounds	

as	 exist	 at	 law	 or	 in	 equity	 for	 the	 revocation	 of	 any	 contract.”	 	 9	 U.S.C.S.	 §	2	

(LEXIS	 through	 Pub.	 L.	 No.	 115-90).	 	 Although	 “the	 FAA	 contains	 no	 express	

preemptive	 provision	 and	 does	 not	 reflect	 a	 congressional	 intent	 to	 occupy	

the	entire	field	of	arbitration,	it	preempts	state	law	to	the	extent	that	it	stands	

as	an	obstacle	to	the	accomplishment	and	execution	of	the	full	purposes	and	

objectives	of	Congress.”		Sakkab	v.	Luxottica	Retail	N.	Am.,	Inc.,	803	F.3d	425,	

431-32	 (9th	 Cir.	 2015)	 (alteration	 omitted)	 (citation	 omitted)	 (quotation	

marks	omitted).		To	that	end,	a	contract	defense	available	to	a	party	seeking	to	

invalidate	 an	 agreement	 to	 arbitrate	 cannot	 “apply	 only	 to	 arbitration	

or	.	.	.	derive	 [its]	 meaning	 from	 the	 fact	 that	 an	 agreement	 to	 arbitrate	 is	 at	

issue.”		Id.	at	432	(quotation	marks	omitted).		By	enacting	the	FAA,	“Congress	

precluded	 States	 from	 singling	 out	 arbitration	 provisions	 for	 suspect	 status,	

requiring	 instead	 that	 such	 provisions	 be	 placed	 upon	 the	 same	 footing	 as	

other	 contracts.”	 	 Doctor’s	 Assocs.,	 Inc.	 v.	 Casarotto,	 517	 U.S.	 681,	 687	 (1996)	

(quotation	 marks	 omitted).	 	 Therefore,	 in	 instances	 where	 a	 state	 law	
                                                                                        19	

“singl[es]	 out”	 arbitration	 contracts	 specifically,	 the	 FAA	 will	 preempt	 that	

state	law.		See	id.		

	      [¶26]		Here,	the	requirement	in	question—that	attorneys	fully	inform	a	

client	of	the	scope	and	effect	of	a	contractual	provision	requiring	the	client	to	

submit	 any	 malpractice	 claims	 against	 the	 firm	 to	 arbitration—does	 not	

“singl[e]	 out”	 arbitration	 agreements,	 and	 is	 therefore	 not	 preempted	 by	 the	

FAA.	 	 This	 requirement	 neither	 “derives	 [its]	 meaning	 from	 the	 fact	 that	 an	

agreement	 to	 arbitrate	 is	 at	 issue,”	 nor	 applies	 strictly	 to	 arbitration	

agreements.	 	 Sakkab,	 803	 F.3d	 at	 432	 (quotation	 marks	 omitted).	 	 As	

explained	above,	this	obligation	is	rooted	in	principles	unrelated	to	arbitration	

in	particular	and	applies	to	situations	that	go	beyond	arbitration:	namely,	that	

as	 a	 general	 matter,	 an	 attorney—who	 stands	 as	 a	 fiduciary	 to	 his	 client—

should	 fully	 inform	 that	 client	 as	 to	 the	 scope	 and	 effect	 of	 her	 decision	 to	

waive	significant	rights.		Cf.	Casarotto,	517	U.S.	at	683	(concluding	that	a	state	

law	governing	not	any	contract,	but	specifically	and	solely	contracts	subject	to	

arbitration,	 conflicted	 with	 the	 FAA	 and	 was	 therefore	 preempted).		

Accordingly,	 the	 court	 did	 not	 err	 in	 concluding	 that	 the	 rule	 requiring	

Bernstein	 to	 fully	 inform	 Snow	 of	 the	 scope	 and	 effect	 of	 the	 agreement	 to	

arbitrate	was	not	preempted	by	the	FAA.		
20	

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	      	    	       	      	
	
Melissa	 A.	 Hewey,	 Esq.	 (orally),	 and	 Timothy	 E.	 Steigelman,	 Esq.,	 Drummond	
Woodsum,	Portland,	for	appellants	Bernstein,	Shur,	Sawyer	&	Nelson,	P.A.,	and	
J.	Colby	Wallace	
	
Thomas	F.	Hallett,	Esq.,	and	Benjamin	N.	Donahue,	Esq.	(orally),	Portland,	for	
appellee	Susan	R.	Snow	
	
	
Cumberland	County	Superior	Court	docket	number	CV-2016-319	
FOR	CLERK	REFERENCE	ONLY	
