Rules and Steps to Follow in Filing for Fee Arbitration
The purpose of the Fee Arbitration Commission is to provide for the arbitration of fee disputes between clients (Petitioners) and attorneys (Respondents) who practice law in the State of Maine.
The Fee Arbitration Commission consists of five geographically distributed panels comprised of lawyers and non-lawyers. Each panel is represented by two lawyers and one non-lawyer.
Initiation of Proceedings
Upon receiving a complaint regarding legal fees paid to or charged by a lawyer admitted to the Bar of this State, the Board shall forward to the complaining party a “Petition for Arbitration of Fee Disputes” to be completed and returned to the Board . In the Petition, the Petitioner shall:
- Fully identify the Petitioner and the Respondent with whom there is a dispute;
- Agree to be bound by the decision of a Fee Arbitration Panel and give up the legal right to bring action in court concerning the disputed legal fees;
- Certify that a good faith effort has been made to resolve the dispute with the Respondent before filing the Petition;
- In those cases where the Respondent has already begun a civil action against the Petitioner to recover fees, provide confirmation of whether and when the Respondent provided the Petitioner with written notice of a right to file for fee arbitration with the Fee Arbitration Commission; and
- Certify that the dispute is not presently the subject of legal action, nor has the matter been finally decided by a Court or administrative agency, except as otherwise explained in the Petition.
A petition may be filed by someone other than the actual client of the lawyer involved with the disputed fee. However, prior to processing such matters, the Board will provide the actual client with notice of the Petition and an opportunity to consent in writing to the petition being processed by the Commission. If that consent is not provided within twenty-one days, the matter will be referred to the Commission Chair for determination whether the Commission has jurisdiction to hear the dispute.
Informal Arbitration by Bar Counsel
After the Petition is filed, it will be reviewed by Bar Counsel who may try to resolve the dispute informally by communicating directly with the Petitioner and the Respondent.
If the dispute is resolved informally, the Petition shall be treated as withdrawn. The Petitioner and Respondent will be so advised by receiving a written Order of Dismissal by the Chair of the Commission.
In addition, a Petition shall be dismissed by the Petitioner’s submission of a written request for dismissal prior to the Respondent’s filing of a Reply to the dispute, or by the filing with the Board a stipulation of dismissal signed by the Petitioner and the Respondent.
Pending Action before Court or State Agency
If there is then pending before a court or agency of this State an action instituted by either petitioner or respondent involving the disputed fees, then such action shall, upon motion of the petitioner, be stayed until such dispute is resolved pursuant to this rule; and the award hereunder shall be determinative of the action so stayed.
Right to Counsel
Although not required, the Petitioner and the Respondent shall have the right to legal representation at their own expense at any stage of the arbitration. For cause shown, or on its own motion, an Arbitration Panel may, in its discretion, obtain the volunteer services of and assign a lawyer to represent either the Petitioner or the Respondent in any proceedings before the Panel.
Notice to Respondent
If the matter is not informally resolved, or has not been dismissed as a result of the preliminary action by the Chair of the Commission within thirty days after the filing of the Petition, a copy of the Petition, together with a “Respondent’s Reply” form, and a copy of these procedures and any relevant rules and regulations, shall be forwarded by certified mail, return receipt requested, to the Respondent with whom the Petitioner is in dispute.
Failure of the Respondent to Reply
If the Respondent fails, without good cause, to file a Reply within thirty days after receiving a copy of the Petition form, the Panel may proceed to hear the Petition and make its findings and award upon the evidence. The Petitioner and the Respondent shall be bound by the findings and award of the Panel.
Referral to Arbitration Panel
Thirty days after forwarding a copy of the Petition to the Respondent, the Board shall forward a copy of the Petition to the Chair and each member of the Arbitration Panel responsible for conducting the hearing. If received, the Respondent’s Reply shall also be forwarded to the Chair and Panel members.
The Petitioner and the Respondent shall be notified by the Board as to the date, time, and place of hearing, as well as the names of the panel members. The Petitioner and the Respondent each have a right to present witnesses and documentary evidence in support of their positions.
If there is a pending action before a court or agency of this State instituted by either the Petitioner or Respondent involving the disputed fees, the Petitioner must file a request in writing to the court or agency in order to postpone the court or agency proceeding until a decision has been made by the Arbitration Panel.
Informal Arbitration by Parties
The Petitioner and the Respondent are encouraged to continue a good faith effort to communicate directly with one another to try to resolve the dispute before the Fee Arbitration hearing. If this occurs, please notify the Board. Panel members volunteer their time to serve as arbitrators, so it is only fair to them that the parties continue to attempt to resolve their dispute to avoid the necessity of a hearing if possible.
On or about twenty days prior to the hearing, the Board shall provide a copy of the Notice of Hearing to the parties. As stated in that Notice, reasons for any objection to the participation of any named members of the hearing panel must be submitted in writing to the Board within seven days of receipt of that notice.
If, at the time set for a hearing before a Panel, all three members are not present, the Chair of the Panel, or in the event of the Chair’s unavailability, the other Panel members present, in their sole discretion, may decide either to postpone the hearing, or, with the written consent of those parties present, to proceed with the hearing with less than three arbitrators.
The members of the Fee Arbitration Panels shall be vested with all of the powers, and shall assume all of the relevant duties granted and imposed upon neutral arbitrators by the Uniform Arbitration Act 14 M.R.S.A. §5927, et seq., to the extent that the same is not in conflict with these Rules.
On the hearing date, the Arbitration Panel shall meet, take testimony, receive other evidence and otherwise conduct an impartial, fair, and expeditious hearing on the matter.
Upon request of a party to the arbitration or upon its own determination, an Arbitration Panel may, for good cause shown, adjourn or postpone the hearing.
The Chair of the Panel shall preside at the hearing. For purposes of admissibility, the Chair shall be the judge of the relevance and materiality of the evidence offered and shall rule on questions of procedure. The Chair shall exercise all powers relating to the conduct of the hearing. Conformity to the Rules of Evidence shall not be necessary.
The Petitioner and the Respondent, or counsel representing them, shall be entitled to be heard, to present evidence and to cross-examine parties and witnesses appearing at the hearing. In addition, any Panel Member shall be entitled to make inquiries of any party or witness at the hearing.
On request of the Petitioner or the Respondent or any member of the Panel, the testimony of witnesses shall be given under oath. When so requested, the Chair of the Panel may administer oaths to witnesses testifying at the hearing.
If either the Petitioner or the Respondent (or both), having been notified of the time, date, and place of the hearing in accordance with these procedures fails to appear at the hearing, the Chair of the Panel may either postpone the hearing or proceed with the hearing and determine the controversy upon the Petition, Reply, and other evidence both parties have seen.
In the event there is no written agreement or engagement letter between the parties concerning fees and expenses as to the particular matter in dispute, the Respondent must bear the burden of proof of an agreement, or other basis for recovery of fees and expenses, and of the reasonableness of those fees and expenses.
The decision of the Arbitration Panel shall be expressed in a written award, signed by all of the panelists hearing the matter, and then filed with the Board. If there is a dissent, it shall be signed separately, but the award shall be binding if signed by a majority of the arbitrators. An award may also be entered on consent of the parties. Once the award is signed and filed, the hearing may not be reopened except upon consent of all parties and a majority of the arbitrators serving on the Arbitration Panel which heard the matter.
The decision of the Arbitration Panel and its award need not be in any particular form but shall be in writing and contain at a minimum, a statement of the amount or nature of the award, if any, and the terms of payment, if applicable.
The decision of the Arbitration Panel is generally issued and filed with the Board within twenty days after hearing. A copy of the decision containing the award is provided to all parties.
Enforcement of the Award
The award decision by an Arbitration Panel may be enforced by either party or instead application may be made for a court to vacate, modify or correct it in accordance with the Uniform Arbitration Act, 14 M.R.S.A. §5927, et seq.
Any refund of a fee ordered by an award shall be refunded by the Respondent within thirty days of notice. If the Respondent fails to make that refund within thirty days, the Petitioner should inform the Board or the Commission in writing forthwith.
With the exception of the award itself, all petitions and related documents shall be kept confidential by the Board unless otherwise ordered by the Court. Notwithstanding that confidentiality, any person, including but not limited to members of the Board, Fee Arbitration Commission and Board staff may notify governmental officials of actual or threatened criminal conduct by any individual.
No fees or other costs will be charged to anyone by the Board for filing or hearing fee disputes. You may use, but should not need, a lawyer to help you complete your Petition and proceed through the fee arbitration process.
In the absence of malice, the Petitioner and any witness shall be immune from liability based upon the filing of a fee complaint or petition and the giving of any testimony in any proceeding hereunder.
Members of the Board, its staff, and members of the Commission, shall be immune from liability for any conduct in the course of their official duties pertaining to fee disputes under any provision of the Maine Bar Rules.
The foregoing summary is based upon the Maine Bar Rules as adopted by the Maine Supreme Judicial Court, as amended, and reference should be made to those rules and, in particular, Rule 9, for a more complete explanation of fee arbitration and procedures.
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