TBA Revives Attorney-Attorney Fee Arbitration
In recent years, requests have come in for fee arbitration for attorney-attorney disputes. Those requests came from older attorneys who recalled that the TBA had such a process. However, the TBA’s recent Code of Regulations did not include such an ADR option.
As background, Prof. Cond. R. 1.5 sets out, in pertinent part:
(f) In cases of a dispute between lawyers arising under this rule, fees shall be divided in accordance with the mediation or arbitration provided by a local bar association. When a local bar association is not available or does not have procedures to resolve fee disputes between lawyers, the dispute shall be referred to the Ohio State Bar Association for mediation or arbitration.
These past inquirers were directed to the OSBA. However, it was recently decided that our members ought to be able to avail themselves of this ADR option, locally. So, the TBA has adopted its own attorney-attorney fee arbitration process, again. [See Below] It is modeled on the OSBA’s process. To apply, or for further information, please contact Joe Dawson, bar counsel at firstname.lastname@example.org or 419-242-9363.
Grievance and Fee Arbitration
FEE ARBITRATION RULES OF THE TOLEDO BAR ASSOCIATION’S CERTIFIED GRIEVANCE COMMITTEE FOR FEE DISPUTES BETWEEN ATTORNEYS
The Toledo Bar Association hereby establishes an arbitration process for fee division disputes between lawyers under Prof. Cond. R. 1.5. This process shall also be available to lawyers who were formerly members of the same firm for fee disputes arising from their separation.
In disputes between lawyers under Prof. Cond. R. 1.5 or between lawyers who were formerly of the same firm, any one of the disputants may notify the TBA Bar Counsel in writing concerning the dispute and request that outside mediation or the arbitration process be made available for resolution of the dispute. Such party shall state in writing that the dispute is one arising under Prof. Cond. R. 1.5 or between lawyers who were formerly of the same firm and that such dispute is not then pending for resolution elsewhere. Such referring party will likewise provide the name and address of all parties to the dispute, and shall simultaneously send a copy of such written request to all such parties.
Upon receipt of such notice, the TBA Bar Counsel shall mail a form to each disputant requesting him or her to advise whether he or she wishes to attempt to resolve the dispute by means of outside mediation or by means of arbitration through the TBA. If at least one of the parties chooses mediation, the first method of dispute resolution utilized will be outside mediation.
Should the disputants choose arbitration, or if outside mediation is unsuccessful in producing a resolution of the fee division dispute, arbitration of the dispute shall proceed and shall be binding. The disputants shall inform the TBA Bar Counsel whether they want one arbitrator or a panel of three arbitrators. If the disputants cannot agree whether to use one arbitrator or three, a panel of three arbitrators shall be used. The TBA Bar Counsel shall choose the names of at least five arbitrators to submit to the parties. Each of the parties may eliminate one name. If necessary, in the case of a three-arbitrator panel, Bar Counsel may present additional names to the parties. After each party has had the opportunity to eliminate one name, the Bar Counsel shall name the three arbitrators from the remaining list of names. The chairperson of the panel of three arbitrators shall be chosen by the panel. As an alternative, the disputants may agree to a three-arbitrator panel to consist of one arbitrator selected by each side, with those two arbitrators in turn mutually agreeing upon the selection of the third who will act as the panel chair. No attorney who has previously served as mediator to the disputants may serve as an arbitrator in the same matter.
The disputants and the arbitrator(s) shall agree upon the location, date, and time of the hearing. Failing agreement, the arbitrator(s) shall set the location, date and time of the arbitration hearing, giving due regard to the express wishes of the parties and attempting to accommodate the parties' schedules as much as possible. The arbitrator(s) shall endeavor to set the hearing no later than 60 days after his/her/their appointment.
The arbitrator or the chairperson of a three-member arbitration panel shall be responsible for conducting the hearing, reviewing documents presented by the parties, and rendering a written arbitration award. Such written arbitration award shall be delivered to the Bar Counsel within ten (10) business days after the conclusion of the arbitration hearing. Bar Counsel shall serve the written arbitration award upon the disputants via email, or by ordinary mail if email is not available.
The American Arbitration Association Commercial Arbitration Rules, Rules 22-47, and Rule 52, are hereby incorporated for use in the arbitration of fee division disputes administered by the TBA pursuant to this Process, to the extent that those Rules are not inconsistent with this TBA Process.
Arbitrators shall execute an oath that they have no bias or conflict of interest that would prevent them from serving as fair arbitrators for the parties.
The arbitrator(s) will provide their services at a rate to be agreed upon by the disputants. If no agreement can be reached, the rate will be $200 per hour, per arbitrator. Mileage in excess of 20 miles will be reimbursed by the parties, based upon the applicable Internal Revenue Code rates, as will overnight lodging and meals, if necessary. Such fee and expenses shall be paid in equal shares by the disputants within 30 days after receipt of the written arbitration award.
All proceedings hereunder shall be confidential and all records maintained as such.
Enforcement of an arbitration award if not otherwise satisfied by the parties, may be made in accordance with Ohio Revised Code Sections 2711.09 through 2711.12.