                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-3059
                       ___________________________

                                  Jerri Plummer

                       lllllllllllllllllllllPlaintiff - Appellee

                                          v.

        Rhett McSweeney; David Langevin; McSweeney Langevin, LLC

                    lllllllllllllllllllllDefendants - Appellants

 Whitney Shoemaker, D.O.; Women's Health And Surgery Center, LLC; Plaintiff
 Funding Holding, Inc., doing business as LawCash; Vincent Chhabra; Michael
 Chhabra; LawFirm Headquarters, LLC; Surgical Assistants, Inc.; Wesley Blake
Barber; Kasia Osadzinska, M.D.; Boston Scientific Corporation; Alpha Law, LLP;
 Richard Martindale; John Does, 1-97 (originally named as 1-99); Ron Lasorsa;
                               Diane Sugimoto

                           lllllllllllllllllllllDefendants
                                   ____________

                   Appeal from United States District Court
               for the Eastern District of Arkansas - Little Rock
                                ____________

                        Submitted: September 24, 2019
                           Filed: October 23, 2019
                                ____________

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
                         ____________
ARNOLD, Circuit Judge.

       This case is about the enforceability of an agreement to arbitrate disputes
between a law firm and its client. Though we share some of the client's and the
district court's concerns about the events giving rise to this lawsuit, we hold that the
district court erred in refusing to enforce the agreement. We therefore reverse and
remand.

       Arkansas resident Jerri Plummer received a wholly unexpected phone call one
day in October 2014 from someone named Yolanda. Yolanda knew that Plummer had
had a transvaginal mesh implanted about six years earlier, and Yolanda asserted that
the mesh was defective and that Plummer could die if she did not have it removed.
Yolanda informed Plummer that she could arrange for Plummer to undergo surgery
in Florida to have the mesh removed and could connect her with an attorney who
could help her obtain compensation for the surgery and for her travel to Florida. Since
Yolanda knew some of her medical history and since Plummer had recently
experienced minor pain she attributed to the mesh, she agreed to Yolanda's
arrangement. Plummer explains that, after the call, she felt as if she "had a ticking
time bomb inside of" her. Plummer traveled to Florida and had the mesh removed
about two months later.

       Plummer maintains that the surgery has caused her substantial and ongoing
medical problems. She sued a horde of defendants in the medical and legal fields for
fraud, constructive fraud, breach of fiduciary duty, civil conspiracy, unjust
enrichment, violations of the Arkansas Deceptive Trade Practice Act, and
malpractice. Among those sued were Minnesota attorneys Rhett McSweeney and
David Langevin and their law firm, McSweeney Langevin, LLC, whom we refer to
collectively as "McSweeney Langevin." McSweeney Langevin moved the district
court to compel arbitration in light of a retainer agreement that Plummer had signed.
That agreement contained a provision beginning with the phrase "Alternate Dispute

                                          -2-
Resolution" in bold type that went on to say that, if mediation failed to resolve any
disputes the parties might have, they "agree to submit their dispute to binding
arbitration in Washington D.C. before JAMS," which is an organization specializing
in alternative dispute resolution. The agreement then provides: "CLIENT HEREBY
ACKNOWLEDGES THAT ARBITRATION IS CLIENT'S ONLY RECOURSE
AND THAT CLIENT WAIVES CLIENT'S RIGHT TO TRIAL BY JURY AND TO
JUDICIAL APPEAL BY SIGNING THIS AGREEMENT."

       The district court held that the parties had entered into a contract, but it
declined to enforce it on the ground that the contract was unconscionable under
Washington D.C. law, which the parties agree is appropriate under a choice-of-law
provision in the agreement. As the district court saw it, "the defendant attorneys and
their firm, through agents acting on their behalf, somehow got their hands on
Plummer's cell phone number and, after instilling fear of death in her, solicited her
to not only undergo a surgical procedure in another state, but also to allow them to
represent her" in a lawsuit against the mesh's manufacturer. The district court found
significant Plummer's statement that she felt she "was in a life or death situation and
there was no time to dicker over details with people who informed [her] of [her]
possible impending death and offered a procedure to save [her] life and to seek justice
on [her] behalf." Further, the court pointed out that McSweeney and Langevin were
attorneys, but Plummer had a tenth-grade education, was inexperienced in reading
contracts, and did not know what arbitration was. The district court also noted that
the retainer agreement was sent to Plummer electronically along with several other
documents she was asked to sign. Finally, the court found that Plummer could not
afford the costs of arbitration: Her income was minimal, and her share of the
arbitration costs and her travel costs made arbitration inaccessible.

      McSweeney Langevin appeals the district court's denial of the motion to
compel arbitration—a decision we review de novo. See Shockley v. PrimeLending,
929 F.3d 1012, 1017 (8th Cir. 2019). We are a little uncertain about the procedural

                                         -3-
posture in which this case comes to us. Under the Federal Arbitration Act, Plummer
arguably could have demanded a jury trial on the question of the enforceability of the
arbitration clause. See 9 U.S.C. § 4. But see Am. Heritage Life Ins. Co. v. Orr, 294
F.3d 702, 710 (5th Cir. 2002). She did not do so, however, and so the motion here
could have eventually been resolved by a trial to the district court. See Neb. Mach.
Co. v. Cargotec Sols., LLC, 762 F.3d 737, 743–44 (8th Cir. 2014). Though neither
party, so far as we can tell from the record, moved for summary judgment, the district
court ruled in Plummer's favor as a matter of law based on what it concluded were the
undisputed facts set forth in Plummer's amended complaint, declarations attached to
Plummer's responses to the motion to compel arbitration, and some supplemental
sworn submissions. In its briefs, McSweeney Langevin raised no objections to this
procedure or to the district court's determination that there did not exist genuine
issues of material fact necessitating a trial, and at oral argument it eschewed any
interest in doing so. We therefore accept the district court's findings as true and deal
only with their legal consequences.

       McSweeney Langevin maintains first that an arbitrator should decide the matter
of unconscionability, not a court, because Plummer's arguments about
unconscionability, and the district court's acceptance of them, are directed at the
retainer agreement as a whole and not just the arbitration provision within it. See
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46 (2006). McSweeney
Langevin, however, failed to raise this matter to the district court, and this is not
merely a new argument; it is an entirely new issue, see Hintz v. JPMorgan Chase
Bank, N.A., 686 F.3d 505, 508 (8th Cir. 2012), so we review it for plain error at most.
But we have held before that "the requirement to proceed in federal court can hardly
be considered a miscarriage of justice" necessitating plain-error relief. See Wiser v.
Wayne Farms, 411 F.3d 923, 927–28 (8th Cir. 2005).

     We therefore take up the matter of unconscionability ourselves. Under the
FAA, agreements to arbitrate "shall be valid, irrevocable, and enforceable, save upon

                                          -4-
such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C.
§ 2. One of these grounds is unconscionability. See Kindred Nursing Ctrs. Ltd. P'ship
v. Clark, 137 S. Ct. 1421, 1426 (2017). Under the governing D.C. law, "a contract
may be unconscionable either because of the manner in which it was made or because
of the substantive terms of the contract or, more frequently, because of a combination
of both." See Urban Invs., Inc. v. Branham, 464 A.2d 93, 99 (D.C. 1983) (per
curiam). These two concepts are frequently referred to as procedural
unconscionability and substantive unconscionability. Id.

      We begin with substantive unconscionability, which in this case involves
Plummer's ability to pay for arbitration. Though the arbitration provision does not
mention who will pay the costs of arbitration, it does say that arbitration will proceed
before JAMS, and JAMS rules provide that parties will pay a pro rata share of costs
unless they agree otherwise. According to the district court, Plummer provided
evidence that her share of costs was extremely high compared to her income,
rendering arbitration prohibitively expensive.

       We do not decide whether the district court correctly found that Plummer had
carried her burden to show that arbitration was prohibitively expensive. On appeal,
McSweeney Langevin has offered to pay Plummer's share of the arbitration costs,
which, it asserts, cures any substantive unconscionability in the contract. Plummer
maintains that we should not consider post-hoc offers like this one since others bound
by the same contract terms might be dissuaded from pursuing claims because of the
high costs of arbitration. We recognize that other courts agree with her. See, e.g.,
Spinetti v. Serv. Corp. Int'l, 324 F.3d 212, 217–18 n.2 (3d Cir. 2003); Morrison v.
Circuit City Stores, Inc., 317 F.3d 646, 676–77 (6th Cir. 2003) (en banc). Plummer
also points out that D.C. courts have noted that unconscionability is determined at the
time the contract is made. See Urban, 464 A.2d at 99–100 n.7.




                                          -5-
        We nevertheless hold that McSweeney Langevin's offer has cured any
substantive unconscionability that the agreement may have contained. We rely
heavily on the fact that at least two (and probably three) separate Washington D.C.
federal district courts applying D.C. law have allowed post-hoc offers to cover
arbitration expenses to cure substantive-unconscionability difficulties. See Fox v.
Comput. World Servs. Corp., 920 F. Supp. 2d 90, 102 (D.D.C. 2013); Nelson v.
Insignia/Esg, Inc., 215 F. Supp. 2d 143, 157 (D.D.C. 2002); see also Nur v. K.F.C.,
USA, Inc., 142 F. Supp. 2d 48, 52 (D.D.C. 2001). These courts are presumptively
familiar with D.C. law, and so we think their approval of this strategy best reflects
that law. And though D.C. courts have observed that unconscionability is determined
at the time the contract is made, that does not mean that a defendant cannot cure any
substantively unconscionable provisions it contains by offering to pay for arbitration.
Courts invoke this time-of-the-making rule when one party argues that a contract,
though enforceable when formed, has subsequently become unconscionable due to
changes in circumstances. See, e.g., Kenyon Ltd. P'ship v. 1372 Kenyon St. Nw.
Tenants' Ass'n, 979 A.2d 1176, 1186–87 (D.C. 2009). We deal with the opposite
situation here.

       We also point out that our court has allowed defendants to cure substantive-
unconscionability difficulties by offering to pay for arbitration, though admittedly we
were not applying D.C. law. See E.E.O.C. v. Woodmen of World Life Ins. Soc'y, 479
F.3d 561, 567 (8th Cir. 2007). And we have done so even when the offer was made
as late as during oral argument. See Dobbins v. Hawk's Enters., 198 F.3d 715, 717 &
n.4 (8th Cir. 1999). We think that permitting McSweeney Langevin to cure
substantive unconscionability in this way is sensible since D.C. law allows a court to
sever an unconscionable term from a contract and enforce the rest of it. See Kenyon,
979 A.2d at 1186. So it seems we can do the same here. See Faber v. Menard, Inc.,
367 F.3d 1048, 1054 (8th Cir. 2004). We don't detect any substantive
unconscionability in the present circumstances.



                                         -6-
       The district court also held that, because Plummer cannot afford arbitration, the
arbitration provision is substantively unconscionable for the additional reason that it
in effect allowed only McSweeney Langevin to obtain redress of claims. But now that
McSweeney Langevin has offered to pay Plummer's share of arbitration costs,
Plummer is not precluded from seeking redress. The district court, moreover, seems
to be relying here on a resistant strain of Arkansas case law that holds that a party's
promise to arbitrate disputes is not enforceable unless the other party promises to
arbitrate as well. The Supreme Court of Arkansas relies on the principle of "mutuality
of obligation" to support this line of cases. See Indep. Cty. v. City of Clarksville, 386
S.W.3d 395, 399–400 (Ark. 2012). But there is no such requirement under D.C. law,
so far as we have discovered, and even if there were we would not apply it because
it contravenes the FAA's directive that courts place arbitration contracts on an equal
footing with other contracts. See Kindred Nursing, 137 S. Ct. at 1424; 9 U.S.C. § 2.1
We therefore reject this other ground for finding that the arbitration provision was
substantively unconscionable.

       Usually a plaintiff must show both procedural and substantive
unconscionability to render a contract unenforceable, but "in an egregious situation,
one or the other may suffice." See Urban, 464 A.2d at 99. The district court here said
that, even without a showing of substantive unconscionability, Plummer had
demonstrated an "egregious" instance of procedural unconscionability. One D.C.

      1
        Arkansas law, for good reason, does not require on "mutuality of obligation"
grounds or any other, that a party's promise, say, to build a house is not enforceable
unless the other party also promises to do so. Our court has already intimated that the
rule followed in Arkansas with respect to arbitration agreements therefore violates the
FAA, see Dickson v. Gospel for ASIA, Inc., 902 F.3d 831, 835 (8th Cir. 2018); Se.
Stud & Components, Inc. v. Am. Eagle Design Build Studios, LLC, 588 F.3d 963,
966–68 (8th Cir. 2009); Barker v. Golf U.S.A., Inc., 154 F.3d 788, 792 (8th Cir.
1998), and an Arkansas federal district court has specifically held as much—we think
correctly. See Enderlin v. XM Satellite Radio Holdings, Inc., No. 4:06-CV-0032 GTE,
2008 WL 830262, at *10 (E.D. Ark. Mar. 25, 2008).

                                          -7-
federal district court pointed out not long ago, though, that "there do not appear to be
any reported D.C. cases finding such an 'egregious' scenario." See Ruiz v. Millennium
Square Residential Ass'n, 156 F. Supp. 3d 176, 180 (D.D.C. 2016). Perhaps for good
reason: As D.C. courts have explained, a showing of substantive unconscionability
is usually needed because, "[w]ithout proof that the terms are unfair, the court
normally will be unable to ascertain what detriment the weaker party suffered as a
result of the bargaining process." Urban, 464 A.2d at 100. So without a showing of
substantive unconscionability, Plummer faces an uphill task at best.

       To determine whether an agreement is procedurally unconscionable, D.C.
courts consider all the circumstances surrounding the transaction, such as the parties'
bargaining power, the parties' opportunity to understand the contract's terms, the
manner in which the contract was entered, the relative expertise of the parties, and the
length of time in which the contract was completed. See Associated Estates LLC v.
BankAtlantic, 164 A.3d 932, 943 (D.C. 2017). But this all appears to boil down to
deciding "whether the party seeking to void the contract lacked a 'meaningful
choice.'" Id. D.C. courts often use the phrase "procedural unconscionability"
interchangeably with "an absence of choice." See, e.g., Woodroof v. Cunningham, 147
A.3d 777, 789 (D.C. 2016).

       We fail to see how Plummer lacked a meaningful choice. We recognize she
received the retainer agreement merely three days before she departed for surgery in
Florida. We also understand that the message was sent to her electronically along
with other documents requiring her signature, and that the message requesting her
signature stated that it was "URGENT." But by this time, Plummer had had more than
a month to get to the bottom of the phone call from Yolanda—a call that should have
raised her antennae. During that time she could have spoken to other attorneys or
even her doctors about the situation.




                                          -8-
       We also note that the agreement itself expressly informed Plummer, in bold
letters, that she had the "Freedom to Contract." That provision explained that
Plummer "has the freedom to bargain for and negotiate any of the terms of this
Agreement or to consult with or retain any attorneys of [her] choice." The retainer
agreement itself is six pages, including nearly one whole page dedicated to signature
blocks, and it is in an easy-to-read format. So even if Plummer only scanned the
contract before signing it, her eyes likely would have been drawn to this information.

       Plummer maintains that she could not have bargained with McSweeney
Langevin over the agreement's terms anyway. But we think this assertion is too
speculative. For one thing, the terms of the agreement belie it. And given that she did
not attempt to bargain with McSweeney Langevin over the agreement's terms, it is
difficult to see why she thinks she could not have. See Woodroof, 147 A.3d at 789.
Even if we assume she could not have bargained with McSweeney Langevin over
terms, there is no showing that she could not have obtained legal services elsewhere.
"The mere fact that a contract is take-it-or-leave-it does not render a party 'powerless'
and without 'real choice'" if she can get services elsewhere in the market. See Ruiz,
156 F. Supp. 3d at 181.

       Plummer also points to her failure to read the retainer agreement as a reason
supporting procedural unconscionability. But "one who signs a contract has a duty
to read it" and "cannot escape being bound by its terms merely by contending that
[s]he did not read them." See Curtis v. Gordon, 980 A.2d 1238, 1244 (D.C. 2009). It
is also of little relevance in the circumstances that other documents requiring her
signature were sent to her at the same time, see Pan Am Flight 73 Liaison Grp. v.
Dave, 711 F. Supp. 2d 13, 24 (D.D.C. 2010), or that the agreement was sent to her
electronically. See Fox, 920 F. Supp. 2d at 98.

      In short, we cannot say that the circumstances giving rise to this lawsuit,
though admittedly troubling, render the retainer agreement at issue procedurally

                                          -9-
unconscionable since Plummer has not demonstrated she lacked meaningful choice.
We therefore reverse the district court's decision not to enforce the agreement on the
ground of unconscionability.

        Plummer advances an alternative ground for affirmance: She maintains that the
agreement is unenforceable because McSweeney and Langevin violated their ethical
duties as attorneys when they failed to explain the ramifications of the arbitration
provision to her. In particular, Plummer maintains that McSweeney and Langevin
failed to "explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation," as relevant ethical rules
require. See D.C. R. Prof'l Cond. 1.4(b). It's not entirely clear to us when the attorney-
client relationship between McSweeney Langevin and Plummer arose; it appears that
it was either in its nascent stages or that the parties were on the cusp of such a
relationship at the time Plummer received the retainer agreement. McSweeney
Langevin was at least aware as of November 2014 that Plummer had been contacted
on its behalf. For the sake of argument, we assume that an attorney-client relationship
had been formed before the agreement was signed.

       "A contract that is contrary to public policy is generally unenforceable."
Shtauber v. Gerson, 239 F. Supp. 3d 248, 253 (D.D.C. 2017). Though D.C. courts
have not said whether their rules of professional conduct are an expression of D.C.
public policy that can render a contract unenforceable, see id., one federal district
court interpreting D.C. law said they were, see Moskowitz v. Holman, PLLC, No.
1:15-cv-336, 2016 WL 356035, at * 11 (E.D. Va. Jan. 28, 2016), and a D.C. federal
district court said the rules were an expression of public policy but that whether a
contract entered into in violation of those rules is unenforceable depended on the
circumstances. See Shtauber, 239 F. Supp. 3d at 255. We assume for the sake of
argument that the arbitration provision would be unenforceable if McSweeney and
Langevin indeed violated Rule 1.4(b).



                                          -10-
        We hold they did not. Though we recognize that courts closely scrutinize
agreements between attorney and client because of the attorney's fiduciary
obligations, see Haynes v. Kuder, 591 A.2d 1286, 1291 (D.C. 1991), the contract here
apprised Plummer of the basic consequences of the arbitration provision. It
specifically explained, in conspicuous, capital letters that, in the event of a dispute,
arbitration was Plummer's only recourse, that Plummer was waiving her right to a jury
trial, and that Plummer was waiving her right to a judicial appeal.

       Haynes involved a situation very similar to ours. There, an attorney and
someone "at the threshold of an attorney-client relationship" entered into a retainer
agreement containing an arbitration provision that said, in essence, that disputes
would be resolved by "arbitration, rather than court action." Id. at 1288–90. The D.C.
high court acknowledged that the provision "was somewhat terse in explaining the
rights [the client] would relinquish by agreeing to arbitration" but nevertheless held
that the contract contained enough information about arbitration that the attorney did
not violate his ethical obligations. See id. at 1290–91. And so the court enforced it.

       Plummer argues that Haynes is distinguishable and no longer good law in any
event. She first points out that Haynes involved fraudulent inducement and not
unconscionability. We see this as a distinction without a difference. Both cases
involve the matter of whether an attorney's nondisclosure makes an arbitration
agreement unenforceable. Plummer also argues that the legal landscape has changed
since Haynes was decided. She observes that the ethics opinion that the Haynes court
viewed as its polestar, see D.C. Bar Comm. on Legal Ethics, Op. 190 (1988), has been
"repealed." Opinion 190 provided that, when a retainer agreement contains an
arbitration clause, "the attorney has the obligation to make a full disclosure to the
client of all the ramifications of an agreement to arbitrate, including eliminating the
right to sue in court and have a jury trial."




                                         -11-
       Plummer is correct that a later ethics opinion "conclude[d] that Opinion 190
was incorrect in supposing that adequate disclosures concerning mandatory
arbitration could be made to lay clients," see D.C. Bar Comm. on Legal Ethics, Op.
211 (1990), thereby setting an impossibly high bar on the amount of disclosure
necessary. But the Haynes court did not adopt that impossible bar. It was well aware
of this subsequent opinion when it decided the case, moreover, even citing it, see
Haynes, 591 A.2d at 1291 n.11, and yet it still found Opinion 190 persuasive on the
matter of how much disclosure is necessary. We have no reason to suspect that the
D.C. high court would now adopt the views set forth in Opinion 211, especially
considering that earlier this year Opinion 211 was itself superseded by yet another
opinion that sought "to loosen" its requirements. See D.C. Bar Comm. on Legal
Ethics, Op. 376 (2019). According to Opinion 376, all that is required is that an
attorney make the client "fully informed of the scope and effect of the agreement," see
D.C. R. Prof'l Cond. 1.8 cmt. 13, which is essentially the same standard as the one
applied in Haynes. More important, we doubt that the D.C. high court will slavishly
adjust its view of the applicable law to resonate with the vacillations of the D.C. Bar
Committee's ethics opinions. It is the ethics rules themselves that provide potential
guidance in cases like this.

       Plummer also points out that, since Haynes, the American Bar Association
released an ethics opinion on the effect of its Model Rule 1.4(b) (on which D.C. Rule
1.4(b) is based) on the use of arbitration provisions in retainer agreements. See ABA
Comm. on Ethics & Prof'l Responsibility, Formal Op. 02-425 (2002). The ABA
opined that "the lawyer should make clear that arbitration typically results in the
client's waiver of significant rights, such as the waiver of the right to a jury trial, the
possible waiver of broad discovery, and the loss of the right to appeal." It also notes
other effects that an attorney "might explain" as well. Some courts have even
expanded on this opinion, requiring attorneys to discuss with clients a wide
assortment of the potential consequences that could attend agreeing to arbitrate



                                           -12-
disputes with an attorney. See, e.g., Hodges v. Reasonover, 103 So. 3d 1069, 1077
(La. 2012).

       But ABA ethics opinions do not bind us or the D.C. courts, see United States
v. Straker, 258 F. Supp. 3d 151, 156–57 (D.D.C. 2017), and this one in particular says
nothing that convinces us that the D.C. high court would no longer follow Haynes.
Plummer relies too heavily on non-binding ethics opinions. We instead rely on an
actual, on-point case from the relevant court. Given that the D.C. high court in
Haynes brushed aside Opinion 211, an opinion from closer to home that also imposed
heightened requirements on arbitration provisions in retainer agreements, we have no
reason to think it would treat the ABA opinion differently if confronted with it. We
repeat that it's the rules of ethics themselves, not opinions about those rules, that
potentially represent an expression of D.C. public policy, the violation of which could
render an agreement unenforceable. We therefore reject Plummer's attempt to cast
doubt on Haynes's continuing vitality and its application to this case. The disclosures
here were broader than those in Haynes, so we necessarily decline to hold that the
arbitration provision at issue here is unenforceable.

     We reverse and remand with instructions to the district court to grant the
motion to compel and to order arbitration at McSweeney Langevin's expense.
                     ______________________________




                                         -13-
