Ethical Considerations in Drafting and Enforcing Consumer Arbitration Clauses

Abstract

Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your life will not feel good no matter how good it looks."

Attorneys representing companies in drafting or enforcing consumer arbitration should therefore remain committed to justice and ethical considerations that transcend stark professional conduct rules. This means that they should go beyond rote assumptions of arbitration's benefits to consider the real risks and impacts of onerous arbitration provisions. At the least, attorneys should counsel clients to draft consumer arbitration clauses that comply with procedural protocols, and offer additional suggestions for balancing efficiency and fairness through use of arbitration. Fair use of consumer arbitration may benefit companies and consumers, and promotes the substance and spirit of attorneys' ethical obligations.

Keywords: consumer arbitration, professional conduct, ethics

JEL Classification: K39, K00