LawyersUSA

A forum-selection clause in an attorney's retainer agreement is enforceable against out-of-state clients, the 5th Circuit has ruled in sending the case to state court.

A Louisiana attorney represented a South Carolina couple in adopting two children. His retailer agreement included a forum selection clause precluding the filing of any claims related to his services anywhere but in state court near the attorney.

When it was determined one of the adopted children suffered from fetal alcohol syndrome due to the birth mother's drug use, the couple sued the attorney in federal court.

The couple alleged that the attorney made misrepresentations (both negligent and intentional) about the health of the birth mother and that he had breached his fiduciary duty to them by failing to thoroughly investigate the mother's health.

The attorney sought to remove the case from federal court, relying on the retainer agreement's forum-selection clause.

The couple claimed the clause was unenforceable because it was obtained through overreaching and violated public policy by reducing lawyers' malpractice liability.

The court disagreed.

"[I]ncluding a forum selection clause in an attorney-client agreement is usually not a limitation on malpractice liability. Instead, it is only a limitation when the selected forum has rules expressly limiting liability or if litigating in that forum would be so unfair as to be a practical limitation on liability," the court said.

"[The attorney] has selected an entirely reasonable forum in light of the fact that the fee agreement at issue governed an adoption that would involve events that would take place mostly in Louisiana and would be governed by Louisiana law. The [couple] have not met their heavy burden to establish that the forum selection clause here should be held unenforceable."

The court also rejected the couple's argument that their tort-based claims were not subject to the retainer agreement.

"While the [agreement] speaks of covering suits dealing with the enforcement or breach of the contract, the causes of action here all arise out of [the attorney's] contractual relationship with [the couple]."

The court cited a similar case from Maine.

U.S. Court of Appeals, 5th Circuit. Ginter v. Belcher, Prendergast & LaPorte, No. 07-30201. July 18, 2008. Lawyers USA No. 99310403. Click here for the full text of this opinion.