Pham v. Letney / In re Pham (Tex.App.- Houston [14th Dist.] 2010)


In consideration of the unique relationship between attorney and client, I write this dissenting opinion to
express my concern about mandatory arbitration provisions in attorney-client agreements.

I have no disagreement with the majority’s analysis and disposition of all issues with the exception of Shelly
Letney’s claim that the method or means of inducing her signature on the agreement renders enforcement
procedurally unconscionable.  I adopt former Fourth Court of Appeals Chief Justice Phil Hardberger’s concern
special public-policy considerations are implicated when an attorney imposes an arbitration
provision on his or her client
.  See Henry v. Gonzalez, 18 S.W.3d 684, 692 (Tex. App.—San Antonio 2000,
pet. dism’d) (Hardberger, C.J., dissenting).  

Accordingly, I disagree with the majority’s decision to “decline to impose a requirement that attorneys must, in
all cases, fully inform prospective clients regarding implications of an arbitration clause in an attorney-client

Whatever public policy may be served by enforcing arbitration agreements is more than offset by the public
policy of insuring that consumers of legal services have protection from attorneys who might take advantage of
their clients.  Shelly Letney, a personal-injury claimant, is representative of the average consumer of legal
services.  She should be afforded the expectation that an attorney is obligated to fully reveal and explain
potential conflicts of interests at the inception of the relationship.  Moreover, the attorney should offer the
prospective client an opportunity to seek advice from another source before signing an attorney-client
agreement that contains language potentially detrimental to the client’s interests if the client later finds it
appropriate or necessary to pursue the attorney for malpractice or other misconduct.

Under the Texas Disciplinary Rules of Professional Conduct, “A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the representation.”  Tex.
Disciplinary R. Prof’l Conduct 1.03(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005)
(Tex. State Bar R. art. X, §9).  The Supreme Court of Texas Professional Ethics Committee agrees that
lawyers should be allowed to insert arbitration clauses in their client contracts as long as “(1) the client is
aware of the significant advantages and disadvantages of arbitration and has sufficient information to permit
the client to make an informed decision about whether to agree to the arbitration provision, and (2) the
arbitration provision does not limit the lawyer’s liability for malpractice.”  See Tex. Comm. On Prof’l Ethics, Op.
586 (2008).

Notwithstanding the application of settled contract law and public policy favoring alternate dispute resolution,
many respected jurists and lawyers oppose arbitration because it is not cost effective, disgorges unwary
consumers of the right to a jury trial, and eliminates appellate review for errors of law.  I remain a proponent of
arbitration.  However, when the legislature and rule-making authority in the legal profession fail to protect
consumers of legal services, I believe the courts have an obligation to act because public perception of the
legal profession’s ability to self-police is not favorable.

Based on Shelly Letney’s averment that she was unaware of the arbitration agreement and her sworn
statement that petitioner did not fully explain the terms, I would hold the trial court did not abuse its discretion
by denying the petitioner’s motion to compel arbitration.  

Accordingly, I respectfully dissent.
Charles W. Seymore


Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan (Hedges, C.J., majority).
Consolidated Interlocutory Appeal and Mandamus Proceeding
Pham v. Letney (pdf) (Tex.App.- Houston [1st Dist.] March 4, 2010)(Hedges)(arbitration agreement between
attorney and client enforced by mandamus, unconscionability argument rejected and overruled)  
(interlocutory appeal of order denying motion to compel arbitration dismissed because FAA applies)      
INTERLOCUTORY APPEAL DISMISSED: Opinion by Chief Justice Adele Hedges     
Before Chief Justice Hedges, Justices Seymore and Sullivan    
14-08-01153-CV  Steven Tuan Pham v. Shelly Letney    
Appeal from 215th District Court of Harris County
Trial Court Judge:  
Levi James Benton  
In re Tuam Pham (pdf) (Tex.App.- Houston [1st Dist.] March 4, 2010)(Hedges)     
MOTION OR WRIT GRANTED: Opinion by Chief Justice Hedges     
Before Chief Justice Hedges, Justices Seymore and Sullivan    
14-09-00387-CV  In Re Steven Tuam Pham    
Appeal from 215th District Court of Harris County
Trial Court:
Judge Levi Benton     
Dissenting Opinion by Justice Seymore in Pham v. Letney (pdf)    
(In consideration of the unique relationship between attorney and client, Justice Seymore writes dissenting
opinion to express his concern about mandatory arbitration provisions in attorney-client agreements)