§ 171.048.Representation by Attorney; Fees

Two different questions about lawyers, answered in one section.

A party is entitled to representation by an attorney at a proceeding under this chapter.

An advance waiver of that right is ineffective. A waiver made before the proceeding does not work, whatever the agreement says.

That is one of the few non-waivable rules in the chapter. Nearly everything else in this subchapter yields to the agreement to arbitrate.

The reason is who signs these agreements. An arbitration clause is often drafted by the stronger party, and a clause barring counsel would leave the other side to face a professional alone.

Fees are a separate matter and are limited. The arbitrators shall award attorney’s fees as additional sums under the award only if fees are provided for in one of two ways.

The first is the agreement to arbitrate itself. A fee clause in the contract carries into the arbitration.

The second is the law that would govern in court. Fees are available if provided by law for a recovery in a civil action in district court on a cause of action on which any part of the award is based.

The second route matters more than it looks. Texas allows fees on many ordinary claims, and an arbitration on such a claim carries that exposure with it.

Absent both, no fees. Arbitrators have no general power to shift fees under this chapter.