Brian Delaney v. Trent S. Dickey and Sills Cummis & Gross, PC

SYLLABUS This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized. Brian Delaney v. Trent S. Dickey (A-30-19) (083440) Argued September 15, 2020 -- Decided December 21, 2020 ALBIN, J., writing for the Court. In this appeal, the Court considers whether the arbitration provision in the retainer agreement plaintiff Brian Delaney signed when he engaged the representation of Sills Cummis & Gross P.C. is enforceable in light of the fiduciary responsibility that lawyers owe their clients and the professional obligations imposed on attorneys by the Rules of Professional Conduct (RPCs). On September 16, 2015, Delaney, a sophisticated businessman, retained Sills to represent him in a lawsuit. He met with a Sills attorney who presented him with a four- page retainer agreement. It was understood that Trent Dickey, who was not in the office that day, was slated to be the attorney primarily responsible for representing Delaney. During the meeting, the Sills attorney told Delaney that he should take his time reviewing the retainer agreement and ask any questions he had about its contents. The third page of the retainer agreement contained an arbitration provision stating that any dispute about the firm’s legal services or fees would be determined by arbitration and that, by agreeing to arbitration, Delaney waived his right to trial by jury; the agreement also advised Delaney that the arbitral result would be final and non- appealable. The fourth page of the retainer agreement indicated that the arbitration proceeding would be conducted through a private arbitration and mediation organization called JAMS and contained a hyperlink to thirty-three pages of JAMS rules governing the arbitral forum. The Sills attorney did not provide Delaney with a hard copy of the thirty- three pages of JAMS rules, offer an explanation of the arbitration provisions in the agreement or the hyperlink, or advise Delaney of the advantages and disadvantages of an arbitral forum in the event of a future fee dispute with or legal malpractice action against the Sills firm. Delaney reviewed and signed the retainer agreement in the presence of the Sills attorney without asking any questions. After the representation was terminated, a fee dispute arose and, in August 2016, Sills invoked the JAMS arbitration provision in the retainer agreement. While the arbitration was ongoing, Delaney filed a legal malpractice action against Dickey and the Sills firm. The complaint alleged that Dickey and Sills negligently represented him. The 1 complaint also alleged that the mandatory arbitration provision in the retainer agreement violated the Rules of Professional Conduct and wrongly deprived him of his constitutional right to have a jury decide his legal malpractice action. The court held that the retainer agreement’s arbitration provision was valid and enforceable. The court specifically found that the provision’s language -- “any dispute with respect to the Firm’s legal services and/or payment by you of amounts to the Firm” will be submitted to arbitration -- was sufficiently broad to encompass a claim of legal malpractice. Additionally, the court determined that Delaney waived his right to trial by jury by agreeing to the unambiguously stated arbitration provision, citing Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), and further observed that a law firm has no obligation to explain to a client the terms of a clearly written retainer agreement that “can be understood by a layperson.” Finally, the court noted that Delaney had sufficient time to consider the import of the retainer agreement. The Appellate Division disagreed, stressing that Sills should have provided the thirty-three pages of JAMS arbitration rules incorporated into the agreement, that Sills did not explain the costs associated with arbitration, and that the retainer included a fee- shifting provision not permissible under New Jersey law. The Court granted defendants’ petition for certification. 240 N.J. 194 (2019). HELD: For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c). That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics, which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to Delaney, who must be allowed to proceed with his malpractice action in the Law Division. 1. Unlike the vendor in a typical commercial transaction, a lawyer serves in a fiduciary role to a client or prospective client. All fiduciaries are held to a duty of fairness, good faith and fidelity, but an attorney is held to an even higher degree of responsibility in these matters than is required of all others. Above all else, a lawyer’s fiduciary role requires that the lawyer act fairly in all dealings with the client and provide the client with not only complete and undivided loyalty, but also with advice that will protect the client’s interests. Lawyers typically prepare retainer agreements, and clients rely on the integrity of their lawyers who fashion the agreements. The attorney bears the burden of 2 establishing the fairness and reasonableness of the transaction given the special considerations inherent in the attorney-client relationship. One of the paramount duties of a lawyer is to make necessary disclosures to the client so that the client can make informed decisions. That duty is expressed in RPC 1.4(c), which states that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” (pp. 23-24) 2. The American Bar Association (ABA) has issued a formal opinion construing the model rule on which RPC 1.4(c) is patterned. The ABA found that a provision in a retainer agreement requiring “the binding arbitration of disputes concerning fees and malpractice claims” did not violate the ABA Model Rules of Professional Conduct, “provided that the client has been fully apprised of the advantages and disadvantages of arbitration and has given her informed consent to the inclusion of the arbitration provision in the retainer agreement.” Additionally, the ABA opinion recognized that a mandatory arbitration provision in a retainer agreement that insulates the lawyer from liability which she otherwise would be exposed under common or statutory law would contravene ABA Model Rule of Professional Conduct 1.8(h), which is substantially similar to New Jersey’s RPC 1.8(h). Professional ethics committees and courts in other jurisdictions have reached conclusions similar to those in the ABA opinion. (pp. 25-32) 3. Noting that the advisory ethics opinions and judicial opinions from other jurisdictions require attorneys, at the very least, to explain the advantages and disadvantages of arbitrating a future fee dispute or malpractice action in light of the substantial differences between adjudicating a dispute in a judicial and arbitral forum, the Court reviews some of the differences between the arbitral JAMS forum in this case and a judicial forum. The Court makes no value judgment whether a judicial or arbitral forum is superior in resolving a legal malpractice action, which is a determination to be made by the lawyer and client, after the lawyer explains to the client the differences between the two forums so the client can make an informed decision. (pp. 32-36) 4. The arbitration provision at issue in this case -- on its face -- would be enforceable if the Sills retainer agreement were a typical contract between a commercial vendor and a customer. See Atalese, 219 N.J. at 444-45. But a retainer agreement is not an ordinary contract -- it must conform not only to the legal principles governing contracts, but also to the ethical obligations imposed on attorneys by the RPCs. Requiring attorneys to explain to a client the advantages and disadvantages of arbitration so that the client can make an informed decision whether to arbitrate a future fee dispute or legal malpractice claim against the firm does not single out a retainer agreement’s arbitration provision for disparate treatment and therefore does not run afoul of the Federal Arbitration Act or the New Jersey Arbitration Act. (pp. 36-39) 5. The client comes to a lawyer for assistance in addressing a particular issue and is not likely anticipating a day when he may have to do battle with the lawyer, who is retained 3 to promote his interests and protect his rights. Yet, the insertion of an arbitration provision in a retainer agreement indicates that the attorney has given thought to the prospect that the client may be a future adversary and has selected the forum in which potential disputes, whether about the attorney’s fees or services, will be resolved. Not even a shadow of a conflict of interest should be cast over the attorney-client relationship at its inception. To dispel that shadow, lawyers should make the necessary disclosures in a disinterested manner to allow clients to make an informed decision, as required by the RPCs. Consistent with the ABA opinion, the weight of authority as expressed in professional advisory opinions and judicial case law in other jurisdictions, and this Court’s interpretation of its own RPCs, the Court holds that attorneys who insert provisions in their retainer agreements to arbitrate future fee disputes or legal malpractice claims must explain the advantages and disadvantages of the arbitral and judicial forums. Attorneys can fulfill that requirement in writing or orally -- or by both means. The Court provides examples of information that may be disclosed. (pp. 39-43) 6. The Court sets forth in this opinion the rudimentary requirements expected of attorneys who include a provision in a retainer agreement that mandates the arbitration of a future fee dispute or malpractice action. Noting that the issues raised here would benefit from further study and discussion, the Court refers those issues to the Advisory Committee on Professional Ethics. (pp. 43-44) 7. Although the Court’s opinion does not break with established precedent, the retroactive application of its ruling may not have been reasonably anticipated and would disturb the settled expectations of many lawyers throughout New Jersey, who genuinely believed that an arbitration provision that met the standards of such cases as Atalese would satisfy the requirements of the RPCs. Therefore, the Court’s holding will apply prospectively from the day of the issuance of this opinion, except as to Delaney, in keeping with the general practice whereby the plaintiff receives the benefit of the rule established in the opinion. Here, because Delaney was not given an explanation of the advantages or disadvantages of arbitration, the present malpractice action is not subject to the arbitration provision of the Sills retainer agreement. Delaney therefore must be allowed to proceed with this malpractice action in the Law Division. The Court stresses that it makes no finding that Sills or its attorneys violated the Rules of Professional Conduct, and it accepts their representations that they acted good faith. (pp. 44-47) The judgment of the Appellate Division is AFFIRMED AS MODIFIED. The matter is remanded to the Law Division. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE ALBIN’s opinion. 4  SUPREME COURT OF NEW JERSEY A-30 September Term 2019 083440 Brian Delaney, Plaintiff-Respondent, v. Trent S. Dickey and Sills Cummis & Gross, P.C., Defendants-Appellants. On certification to the Superior Court, Appellate Division. Argued Decided September 15, 2020 December 21, 2020 Peter G. Verniero argued the cause for appellants (Sills Cummis & Gross, attorneys; Peter G. Verniero, Richard H. Epstein, and Joshua N. Howley, of counsel and on the briefs). Glenn A. Bergenfield argued the cause for respondent (Glenn A. Bergenfield, on the briefs). William E. Denver argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; Kimberly A. Yonta, President, of counsel, and Andrea J. Sullivan and Kersten Kortbawi, on the brief). Michael S. Stein argued the cause for amicus curiae Bergen County Bar Association (Pashman Stein Walder 1  Hayden, attorneys; Michael S. Stein and Janie Byalik, on the brief). Michael J. Epstein argued the cause for amicus curiae New Jersey Association for Justice (The Epstein Law Firm, attorneys; Michael J. Epstein, of counsel and on the brief, and Michael A. Rabasca, on the brief). JUSTICE ALBIN delivered the opinion of the Court. An attorney serves in a fiduciary role with a client at the very inception of the attorney-client relationship. In that fiduciary role, an attorney has a professional obligation to explain the content of a retainer agreement “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” RPC 1.4(c). Thus, a retainer agreement is not an ordinary contract governed by the rules of the marketplace but is a contract that must meet the high standards of the Rules of Professional Conduct (or RPCs). An attorney’s professional and fiduciary obligations require scrupulous fairness and transparency in dealing with clients -- requirements different from the typical norms that regulate arm’s-length commercial transactions between vendors and customers. Through the lens of those basic principles, we view the issue before us: whether a lawyer has a duty to explain the benefits and disadvantages of a 2 provision in a retainer agreement that binds the client to arbitrate a future fee dispute or legal malpractice action in a non-judicial forum. In this case, plaintiff Brian Delaney, a sophisticated businessman, sought the representation of Sills Cummis & Gross P.C. (Sills), a prominent law firm, in an ongoing commercial lawsuit with his estranged business partners. At the Sills office, an attorney handed Delaney a four-page retainer agreement, including a one-page attachment (fourth page). The retainer agreement stated that any dispute about the firm’s legal services or fees would be determined by arbitration and that, by agreeing to arbitration, Delaney waived his right to trial by jury. The agreement also advised Delaney that the arbitral result would be final and non-appealable. The one-page attachment indicated that the arbitration proceeding would remain confidential and would be conducted through a private arbitration and mediation organization called JAMS pursuant to its rules and procedures. The attachment, moreover, contained a hyperlink to thirty-three pages of JAMS rules governing the arbitral forum. 1 On the day Delaney reviewed and signed the retainer agreement, the Sills attorney did not provide a hard copy of the JAMS rules, 1 The thirty-three pages of JAMS rules include the cover page and table of contents. 3 although he offered to answer any questions Delaney might have about the agreement. Delaney later terminated his relationship with Sills. When Delaney refused to pay the outstanding fees allegedly owed to Sills, the firm invoked the arbitration provision. Delaney later sued Sills for professional malpractice and moved before the Chancery Division to stay the fee dispute that was already in arbitration, pending the outcome of the malpractice action. The Chancery Division ruled that the fee dispute and the malpractice claim were subject to the retainer agreement’s arbitration provision. The Appellate Division reversed. It found that Sills’s failure to provide Delaney with the thirty-three pages of JAMS rules referenced in the retainer agreement before Delaney signed the agreement or to explain to him the JAMS rules, “some of which were material to the arbitration clause and the client’s decision to retain Sills,” rendered the arbitration provision unenforceable under the Rules of Professional Conduct. We now hold that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental 4 differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c). An arbitration provision in a retainer agreement is an acknowledgement that the lawyer and client may be future adversaries. That the retainer agreement envisions a potential future adverse relationship between the attorney and client -- and seeks to control the dispute-resolution forum and its procedures -- raises the specter of conflicting interests. An arbitral forum and judicial forum, and their accompanying procedures, are significantly different. We do not make any value judgment about whether an arbitral or a judicial forum would be more beneficial to a client if the client and attorney part as adversaries. We conclude, however, that an attorney’s fiduciary obligation mandates the disclosure of the essential pros and cons of the arbitration provision so that the client can make an informed decision whether arbitration is to the client’s advantage. See RPC 1.4(c). That obligation is in keeping with an attorney’s basic responsibility to explain provisions of a retainer agreement that may not be clear on their face. Accordingly, the disclosures required of an attorney in explaining an arbitration provision in a retainer agreement stand on an equal footing with the disclosures required in explaining other material provisions in the agreement. Such comparable 5 treatment does not offend the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, or the New Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -36. The arbitration provision in this case satisfies the requirements for a typical consumer or commercial agreement. The heightened professional and fiduciary responsibilities of an attorney, however, demand more -- an explanation of the differences between an arbitral and judicial forum. That explanation may include, for example, that in arbitration the client will not have a trial before a jury in a courtroom open to the public; the outcome of the arbitration will not be appealable and will remain confidential; the client may be responsible, in part, for the costs of the arbitration proceedings, including payments to the arbitrator; and the discovery available in arbitration may be more limited than in a judicial forum. 2 That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. We refer the issues raised in this opinion to the Advisory Committee on Professional Ethics for its review. The Committee may make recommendations to this Court and propose further guidance on the scope of an attorney’s disclosure requirements. 2 The nature of the disclosure requirements will depend on the particular rules of the arbitral forum chosen by the attorney. 6  Because the professional obligation we now impose may not have been reasonably anticipated and would unsettle expectations among lawyers, we apply this new mandate prospectively, with one exception. Applying the holding of our opinion here is “consistent with the usual rule that the prevailing party who brings a claim that advances the common law should receive the benefit of his efforts.” See Estate of Narleski v. Gomes, 244 N.J. 199, 204 (2020). To be clear, however, we do not find that Sills or its attorneys violated the Rules of Professional Conduct, and we accept their representations that they acted in good faith. Therefore, Delaney must be allowed to proceed with his malpractice action in the Law Division. We affirm and modify the judgment of the Appellate Division and remand to the Law Division for proceedings consistent with this opinion. I. A. This appeal comes before us on facts essentially undisputed in the parties’ pleadings. In November 2014, Delaney filed a lawsuit in Morris County against his business partners in two limited liability companies involved in real estate development. In January 2015, one of those business partners filed a lawsuit 7 against Delaney in Sussex County. The law firm of Trenk DiPasquale represented Delaney in both actions. On September 16, 2015, Delaney retained Sills to represent him in the Morris County lawsuit, replacing Trenk DiPasquale. That day, Delaney met with a Sills attorney who presented him with a four-page retainer agreement. It was understood that Trent Dickey, who was not in the office that day, was slated to be the attorney primarily responsible for representing Delaney. The Sills attorney signed Dickey’s name to the agreement and affixed his own initials below the signature. During the meeting, the Sills attorney told Delaney that he should take his time reviewing the retainer agreement and ask any questions he had about its contents. The third page of the retainer agreement contained the following arbitration provision: [I]n the event that we and you are unable to come to amicable resolution with respect to any dispute (including, without limitation, any dispute with respect to the Firm’s legal services and/or payment by you of amounts to the Firm), we and you agree that such dispute will be submitted to and finally determined by Arbitration in accordance with the provisions set forth on attachment 1 to this retainer letter. In such case, you would need to engage separate counsel to represent your interests and you would incur additional expense in connection with such arbitration. The decision of the Arbitrator will be final and binding and neither the Firm nor you will have the right to appeal such decision, whether in a court or in another arbitration proceeding. 8  You understand that, by agreeing to arbitrate disputes as provided in this retainer letter, you are waiving any and all statutory and other rights that you may have to a trial by jury in connection with any such dispute, claim or controversy. Notwithstanding the provisions of this paragraph and Attachment 1, the Company will retain the Company’s absolute right to proceed under the Fee Arbitration Rules set forth in New Jersey Court Rule 1:20A, which will take precedence. A one-page attachment entitled “Attachment 1 to Engagement Letter - Arbitration Provisions” -- the fourth page of the agreement -- gave a general description of some of the arbitration rules and provided a hyperlink to thirty- three pages of JAMS rules governing any dispute between the law firm and the client. The attachment stated: Any disputes arising out of or relating to this engagement agreement or the Firm’s engagement by you will be conducted pursuant to the JAMS/Endispute Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (see http://www.jamsadr.com), except that, notwithstanding those rules, the following provisions will apply to the arbitration: Panel. The arbitration will be conducted by one impartial arbitrator (who may be a former judge, practicing attorney or person who is not an attorney), selected by mutual agreement or, if we and the Company cannot agree, the arbitrator will be selected in accordance with the JAMS Rules. Process. The arbitrator will not award punitive damages to either party, and we and the Company will each be deemed to have waived any right to such damages. The arbitrator will, in rendering his or her decision, apply the substantive law of the State of New 9  Jersey (excluding its choice of law rules that would require the application of the laws of another jurisdiction). The place of arbitration will be Newark, New Jersey. The award of the arbitrator will include a written explanation of his or her decision and specify the basis for any damages. The written decision of the arbitrator will be final, binding and non-appealable and may be enforced in any court of competent jurisdiction. The Firm and You will pay an equal share of all costs and expenses related to compensation of the arbitrator, the site and any administrative fees, except that the award rendered by the arbitrator may include the costs and expenses of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Confidentiality. The arbitration proceeding will be confidential. The existence of any matter submitted to arbitration, and the award, will be kept in confidence by you, the Firm and the arbitrator, except as required in connection with the enforcement of such award or as otherwise required by applicable law. The Sills attorney did not provide Delaney with a hard copy of the thirty-three pages of JAMS rules, offer an explanation of the arbitration provisions in the agreement or the hyperlink, or advise Delaney of the advantages and disadvantages of an arbitral forum in the event of a future fee dispute with or legal malpractice action against the Sills firm. Delaney reviewed and signed the retainer agreement in the presence of the Sills attorney without asking any questions. In an October 7, 2015 supplemental retainer letter forwarded to Delaney, Dickey confirmed that Sills would substitute as counsel for Trenk DiPasquale 10 in the Sussex County lawsuit. The supplemental letter -- signed by Delaney and returned to Sills the next day -- advised that an additional retainer was required and that the firm’s “fees will likely exceed $300,000 up to trial, and could be substantially higher.” That letter made no reference to arbitration. At some point, Dickey and Delaney agreed that Sills would withdraw from the Sussex County lawsuit, allowing another attorney, who agreed to cap Delaney’s fees, to substitute as counsel. In April 2016, Delaney allegedly agreed to accept a financial settlement in the Morris County litigation sub ject to the parties’ agreement to negotiate additional terms. After a final agreement was purportedly reached, Delaney terminated his relationship with Sills on July 21, 2016. At the time, Delaney refused to pay the almost $440,000 in legal fees that Sills asserted it was owed.3 By letter dated July 25, 2016, Sills forwarded a pre-action notice to Delaney advising him of his right to elect fee arbitration with the Essex County Fee Arbitration Committee under the New Jersey Court Rules. 4 Delaney did not avail himself of that right. 3 According to Delaney, the Sills firm billed him nearly $1,000,000 in legal fees. 4 Rule 1:20A-6 provides that “[n]o lawsuit to recover a fee may be filed until the expiration of the 30 day period herein giving Pre-action Notice to a client,” advising the client of the right to seek fee arbitration under the New Jersey 11  On August 29, 2016, Sills invoked the JAMS arbitration provision in the retainer agreement. The parties postponed the arbitration as they attempted to resolve the fee dispute through mediation. After mediation failed, on April 6, 2017, Sills restarted the arbitration process, and the parties selected an arbitrator. In the ensuing months, the parties skirmished over discovery and procedural matters. On August 31, 2017, Delaney filed a legal malpractice action against Dickey and the Sills firm in the Superior Court, Law Division, Essex County. 5 The complaint alleged that Dickey and Sills negligently represented him. The complaint also alleged that the mandatory arbitration provision in the retainer agreement violated the Rules of Professional Conduct and wrongly deprived him of his constitutional right to have a jury decide his legal malpractice action. Afterwards, the arbitrator stated that arbitration, scheduled for October 10-12, 2017, would not be postponed on account of the filing of the malpractice case. Court Rules. In the scenario before us, under our Court Rules, Delaney, not Sills, could request arbitration of a fee dispute before a court-appointed fee arbitration committee. See R. 1:20A-3. 5 The malpractice lawsuit also named as defendants Delaney’s prior attorneys, the Brach Eichler firm and one of its lawyers. 12  On September 19, 2017, Delaney filed an Order to Show Cause and verified complaint in the Superior Court, Chancery Division, Essex County , seeking a declaratory judgment that the retainer agreement’s arbitration provision was unenforceable. Alternatively, Delaney requested that the Chancery Division stay the arbitration pending the outcome of the legal malpractice action, explaining that to do otherwise would result in the “likelihood of inconsistent rulings and piecemeal litigation.” In the verified complaint, Delaney asserted that Sills did not make him “aware of the inequities and costs associated with proceeding with arbitration.” More specifically, he asserted that Sills did not explain to him that he might be responsible for arbitration fees that could greatly exceed the filing fees in a comparable court action and for the firm’s attorneys’ fees and costs, depending on how the arbitrator ruled. Finally, he alleged that he would not have signed the retainer agreement if he had been told that he was giving up his right to a jury trial in the event he had to bring a legal malpractice claim against Sills . The Chancery Division granted Delaney’s Order to Show Cause and heard oral argument. B. On November 9, 2017, the Chancery Division denied Delaney’s application to stay the arbitration proceeding and held that the retainer 13 agreement’s arbitration provision was valid and enforceable. The court specifically found that the provision’s language -- “any dispute with respect to the Firm’s legal services and/or payment by you of amounts to the Firm” will be submitted to arbitration -- was sufficiently broad to encompass a claim of legal malpractice. Additionally, the court determined that Delaney waived his right to trial by jury by agreeing to the unambiguously stated arbitration provision, citing Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), and further observed that a law firm has no obligation to explain to a client the terms of a clearly written retainer agreement that “can be understood by a layperson.” Finally, the court noted that Delaney had sufficient time to consider the import of the retainer agreement. 6 The Chancery Division and Law Division entered separate orders directing that Delaney’s malpractice action proceed in arbitration and dismissing his malpractice complaint filed in the Law Division. 6 The Chancery Division incorrectly concluded that Delaney had twenty-two days to ponder the retainer agreement handed to him by the Sills attorney on September 16, 2015. In fact, Delaney signed the agreement on that date. The Chancery Division believed that Delaney did not sign and return the initial agreement until October 8, 2015, but it was Dickey’s supplemental retainer letter that Delaney signed and returned on that date. 14  C. In an unpublished opinion, the Appellate Division declared that the arbitration provision in the Sills retainer agreement was unenforceable because Sills did not fulfill its fiduciary responsibility under the Rules of Professional Conduct to explain to its client the effect of arbitrating a future malpractice action. The Appellate Division primarily focused its analysis on RPC 1.4(c), which requires that a lawyer “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In doing so, it noted that “[t]he potential effect of an agreement to arbitrate must be clear to the client to be binding upon him .” (alteration in original) (quoting Kamaratos v. Palias, 360 N.J. Super. 76, 87 (App. Div. 2003)). The Appellate Division held that, when presenting the retainer agreement to Delaney for his signature, Sills should have provided the thirty- three pages of JAMS arbitration rules incorporated into the agreement, “some of which were material to the arbitration clause and the client’s decision to retain Sills.” The court emphasized that Sills did not explain the arbitration provision or the JAMS rules to Delaney and that, without having a copy of the rules when he signed the agreement, Delaney could not have agreed to the 15 limitation on his right to discovery or to forgo other benefits available in an action filed in a court. The Appellate Division observed that although the arbitration provision informed Delaney that “he would be required to pay an equal share of all costs and expenses related to compensation of the arbitrator,” without an explanation from Sills, “the client had no way of gauging whether the arbitrator’s fee would be closer to $10,000, $50,000 or $100,000.” The court also pointed out that the text of the retainer agreement allowed for the arbitrator to impose “reasonable attorneys’ fees and reasonable costs” on the client in the malpractice action -- fee-shifting not permissible under New Jersey law. In conclusion, the Appellate Division stressed that it was not holding that retainer agreements mandating arbitration of legal malpractice claims were per se invalid or that the “reasonable explanation” required by RPC 1.4(c) could not be provided in writing. Rather, it determined only that when an attorney does not provide to the client, at the time of the signing of a retainer agreement with an arbitration provision, a document incorporated into the agreement containing material terms concerning arbitration and gives no explanation of the import of those material terms, the arbitration provision cannot stand. 16  D. We granted defendants’ petition for certification. 240 N.J. 194 (2019). We also granted the motions of the New Jersey State Bar Association, the Bergen County Bar Association, and the New Jersey Association for Justice to participate as amici curiae. II. A. Sills argues that the clear and unambiguous four-page written retainer agreement handed to Delaney by one of its attorneys, who offered to answer any questions Delaney might have concerning the agreement’s contents, satisfied the firm’s obligations under the Rules of Professional Conduct. Sills rejects the notion that it had a duty under existing law to provide the client with any additional explanation about arbitration, such as opining on the benefits or disadvantages of arbitrating a future fee dispute or legal malpractice claim. Sills contends that the Appellate Division violated this Court’s jurisprudence by failing to place the arbitration provision on an equal footing with other contracts or to view arbitration as a favored means for resolving disputes. Sills also maintains that the Appellate Division erred by retroactively imposing on it new disclosure requirements under the RPCs and by trespassing on the domain of the bodies responsible for promulgating new 17 ethical obligations -- the Advisory Committee on Professional Ethics, the Professional Responsibility Rules Committee, and this Court. Sills asks this Court to reverse and remand the fee dispute and legal malpractice claim for arbitration. B. Delaney counters that Sills breached its fiduciary duty to him by including an arbitration provision in the retainer agreement and then by failing to explain the parts that did not benefit him in the event the firm committed malpractice. That he asked no questions about the retainer agreement is of no moment, he argues, because under RPC 1.4(c) the firm had a duty to disclose that the language about arbitrating “any dispute with respect to the Firm’s services” would encompass a malpractice claim against the firm. Delaney maintains that he came to Sills to engage its services in his contract dispute with business partners -- not as the firm’s sophisticated and wary adversary. He insists that Sills had an ethical duty to disclose to him how -- in the event Sills committed malpractice -- he benefitted by waiving his rights to sue and publicly air his dispute in court before a New Jersey judge and jury, to expansive discovery, to appeal, and not to be bound by an automatic confidentiality requirement. 18  Delaney also asserts that, in violation of RPC 1.8(h)(1), the arbitration provision impermissibly made him potentially liable for Sills’s legal fees and shielded Sills from a c