9. Fee Arbitration
(1) The Fee Arbitration Commission shall consist of at least 15 regular members plus such alternate members as may be appointed by the Board. Not less than one-third of the regular members shall be lay persons and the balance (as close to two-thirds as may be) shall be attorneys, each to be appointed by the Board for 3-year terms. Initially 1/3 of the regular members of the Commission shall be appointed for a period of 1 year, 1/3 for a period of 2 years, and 1/3 for a period of 3 years. As each regular member's term of office on the Commission expires, a successor shall be appointed for no more than 2 consecutive full terms but a regular member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term. A former regular member shall again be eligible for appointment after a lapse of one year. The term of any member which expires while an arbitration is pending before that member or before a panel that includes that member, shall with reference to that arbitration, be extended until such arbitration is concluded, but such extension shall not interfere with the Board's power to appoint a successor to the Commission. The Board shall appoint the Chair of the Commission each year from among the regular members of the Commission. The alternate members shall be appointed by the Board for 3-year terms to serve pursuant to the directions of the Chair of the Commission as substitutes for any regular member who is unable to serve for any particular arbitration. Except with the consent of the parties pursuant to Rule 9(g)(1) or (2), each panel assembled for a particular arbitration shall include at least one attorney member.
(2) Attorney members of the Commission shall have been admitted to the Bar of this State, shall have practiced law for not less than 5 years and shall be selected to provide reasonable geographic representation within this State consistent with subdivision (c) hereof.
(3) Lay members of the Commission shall be residents of this State and shall possess such additional qualifications, including geographic representation consistent with subdivision (c) hereof, as shall seem appropriate to the Board.
(4) The Commission shall be divided by its Chair into 5 panels of 3 members each, at least one of whom in each panel shall be a lay member. The Chair of the Commission shall designate 1 member of each such panel as Panel Chair, and the panel chairs, together with the Chair of the Commission, shall constitute the Executive Council of the Commission.
(b) Executive Council. The Executive Council shall be charged with the responsibility of overseeing the work of the Commission, developing forms to implement the procedure prescribed herein and may formulate procedural regulations not inconsistent with these rules.
(c) Fee Arbitration Panels. The Fee Arbitration Panels shall be separately designated and shall perform their functions by such designation and within the following geographic areas except as otherwise directed by the Chair of, or Secretary to, the Commission:
Panel 1A--within York county
Panel 1B--within Cumberland county
Panel 2--within Androscoggin, Franklin, Lincoln, Oxford and Sagadahoc counties
Panel 3--within Kennebec, Knox, Somerset, and Waldo counties
Panel 4--within Aroostook, Hancock, Penobscot, Piscataquis and Washington counties
In instances where a complainant and a respondent attorney are domiciled or otherwise located in counties which may involve the geographic area of more than 1 panel, the Chair of, or Secretary to, the Commission shall have the authority to direct which of such panels shall hear the dispute in question.
(d) Secretary. The Board may appoint a Secretary to the Commission and to the several panels. The Secretary shall not be responsible for attending panel hearings, nor for providing secretarial or recording services at or during such hearings. The Secretary shall keep and maintain records of all petitioners and respondents, as well as all proceedings, determinations and awards of the Commission and its respective panels.
The Secretary shall perform such additional duties and have such additional responsibilities as may be assigned by the Board or the Commission.
The Secretary shall have the authority to designate one or more Assistant Secretaries or Secretaries pro tempore for the purpose of performing duties of the Secretary hereunder and any other duties assigned or requested by the Commission or one of the panels, including attendance at panel hearings and the taking and reporting of a stenographic or recorded transcription thereof.
(1) Initiation of Proceedings. Upon receiving a complaint from any source regarding legal fees paid to or charged by an attorney admitted to the Bar of this State, the Secretary shall forward to such complainant a copy of these procedures and any relevant regulations or rules adopted by the Board or the Commission with respect to fee arbitration, together with the blank form captioned "Petition for Arbitration of Fee Disputes". Proceedings before a Fee Arbitration Panel of the Commission shall be initiated by the completion and forwarding to the Secretary of the petition, in which the petitioner shall:
(A) Set forth the petitioner's full name and current address and the attorney with whom the petitioner has a dispute;
(B) Agree to be bound by the decision of a Fee Arbitration Panel;
(C) Represent that the petitioner has made a good faith effort to resolve the dispute with the attorney involved before filing the petition; and
(D) State whether the dispute is the present subject of legal action and certify that the matter has not been finally adjudicated by a court or administrative agency. If the dispute is the subject of other judicial or administrative proceedings, such proceedings shall be identified in the petition.
(2) Informal Arbitration. After the petition is filed with the Secretary to the Commission, it shall be expeditiously reviewed by Bar Counsel, who may endeavor to resolve the dispute informally, and for such purposes may communicate directly with the petitioner and the attorney against whom the claim is being made. If the Respondent attorney named in a filed petition is a member of the Board or the Fee Arbitration Commission, the petition shall be immediately referred to the Board Chair or Vice Chair for such action as deemed appropriate including appointment of a panel of the Board to act in place of the Fee Arbitration Commission as provided by M. Bar R. 4(d)(7).
If the dispute is resolved informally, the petition shall be deemed to have been withdrawn, and the petitioner shall be so advised in writing.
(3) Preliminary Review by Chair. If Bar Counsel determines that there is no just ground for the complaint or dispute, or that the matter is moot, or that the arbitration has not been commenced within six years from the time the bill in dispute was rendered or the fee paid in whole or in part, whichever occurs first, or that action by the Commission is otherwise unwarranted, Bar Counsel may refer the matter to the Chair of the Commission, together with a brief written report setting forth the facts and Bar Counsel's recommendations.
(A) If the Chair concurs with Bar Counsel's recommendations, the matter shall be closed and the complainant so advised.
(B) If the Chair disapproves Bar Counsel's recommendations, the matter shall be returned to the Secretary for further proceedings.
(4) Notice to Respondent.
(A) If the matter is not informally resolved, or has not been closed as a result of the preliminary action by the Chair within 30 days after the filing of the petition, a copy of the petition, together with the blank form captioned "Respondent's Reply and Submission to Arbitration" and a copy of these procedures and any relevant rules and regulations, shall be forwarded, by certified mail, return receipt requested, to the attorney with whom the petitioner is in dispute.
(B) The Secretary shall, upon receipt of a reply by an attorney, forward a copy of the same to the petitioner.
(C) When a petition is filed by a non-client of the named Respondent attorney, prior to notifying the attorney, the Secretary shall provide the client with notice of the petition and request that within 21 days the client consent in writing to the filing and processing of the petition under Rule 9. Should the client fail to provide consent, the Secretary shall refer the matter to the Chair for determination whether any action under Rule 9 is appropriate for the Commission or if dismissal is required pursuant to Rule 3.3(c).
(5) Referral to Arbitration Panel.
(A) The Secretary shall forward a copy of the petition with the attorney's reply, if any, to the chair and each member of the arbitration panel responsible for conducting the hearing.
(B) The chair of the arbitration panel shall make every effort to assign the matter for hearing not later than 60 days after the date of receipt of the copy of the petition from the Secretary.
(C) The petitioner and the attorney shall be notified by the Secretary as to the date, time and place of hearing, as well as the names of the members of the arbitration panel appointed to arbitrate the dispute which is the subject matter of the petition. In the event of the unavailability of any of the named members, the Chair or the Secretary of the Commission may designate other members of the Commission to serve at the hearing. Such notice of hearing will, in addition, notify the petitioner and the attorney of their right to present witnesses and documentary evidence in support of their positions, and at their own expense, to have a record of the proceedings made.
(D) 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.
(E) Notice of Client's Right to Arbitrate Legal Fees. At least 30 days before service or filing of a complaint in a civil action against an attorney's client or former client (hereinafter client) to recover fees for professional services previously rendered and/or costs incurred for which no judgment has previously been obtained, an attorney must mail to the client at the client's last known address a written notice of right to arbitrate, which must include at least the following language:
You currently owe the sum of $ in legal fees (and costs) to (name of attorney or firm). If you dispute the fact that you owe any part of the amount claimed to be due, you have the right to have the matter resolved without additional expense to you by arbitration before a panel of the Fee Arbitration Commission. Forms and instructions for filing a petition for arbitration are available from the Board of Overseers of the Bar, 97 Winthrop Street, PO Box 527, Augusta, Maine 04332-0527. Telephone: (207) 623-1121.
(F) Failure to Give Notice. No attorney shall seek to enforce a judgment against a client for attorney fees or costs which has been entered without the required notice of right to arbitrate having been given.
(G) If not earlier resolved pursuant to Rule 9(e)(3), a petition shall later be dismissed by the Secretary upon i.) the petitioner's submission of a written request for dismissal prior to the attorney's filing of a reply to the dispute, or ii.) the filing with the Secretary of a stipulation of dismissal signed by the petitioner and the respondent. A petition shall not otherwise be dismissed except by order of the Chair of the assigned hearing panel or the Chair of the Commission for good cause shown upon such terms and conditions as may be deemed appropriate by that Chair.
(6) Right to Counsel. Each party to a dispute shall have the right to be represented at the party's own expense by an attorney 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 an attorney to represent either the petitioner or the attorney being complained against in any proceeding before the panel.
(7) Any notice or other communication required by this Rule 9 to be given to a petitioner shall be sufficient if mailed in accordance with these rules to the address set forth by petitioner in the petition. Any notice or other communication required to be given to an attorney shall be sufficient if mailed in accordance with these rules to an office or residence address set forth by the attorney on the most current registration statement filed pursuant to Rule 6(a) hereof.
(f) Failure of the Attorney to Reply. If the attorney fails, without good cause, to file a reply within 30 days next after the mailing of the copy of the petition, form of reply and the copy of the procedures and regulations; or if the attorney fails to appear in the proceedings without good cause, the panel may proceed to hear the petition and make its findings and award upon the evidence produced by the petitioner, and the attorney shall be bound by the findings and award of the panel in the same manner, and with the same effect, as on a default judgment entered by the Superior Court of this State.
(g) Arbitration Hearing.
(1) If, at the time set for a hearing before a panel, 3 members are not present, the chair of the panel, or in the event of the chair's unavailability, the other members or member present, may decide either to postpone the hearing, or, with the written consent of those parties present, to proceed with the hearing with two arbitrators, one of whom shall be a lay member.
(2) If any member of a panel dies or becomes unable to continue to act while the matter is pending and before an award has been made, the proceedings to that point shall be declared null and void and the matter assigned to a new panel for rehearing unless the parties, with the consent of the panel chair, or in the event of the chair's unavailability, the Chair of the Commission, consent to proceed with one or both of the remaining members of the panel.
(3) The members of the 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.
(4) 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.
(5) Upon request of a party to the arbitration or upon its own determination, an arbitration panel or its chair may, for good cause shown, adjourn or postpone the hearing from time to time.
(6) 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 Maine Rules of Evidence shall not be necessary.
(7) The petitioner and the attorney, 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.
(8) On request of the petitioner or the attorney 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.
(9) If a petitioner who has been notified of the time, date and place of the hearing in accordance with these procedures, fails to appear at the hearing, an arbitration panel or its chair may either postpone the hearing or proceed with the hearing and determine the controversy upon the petition, reply, and other evidence produced.
(10) Either the petitioner or the attorney may have the hearing reported at that party's own expense, but a party having the hearing reported must provide a copy of the transcript, free of charge, to the panel. Further, in such event, any other party to the arbitration shall be likewise entitled to a copy of the transcript, at that other party's own expense, by arrangements made directly with the reporter.
(11) In the event of the death or incompetency of a party to the arbitration proceeding prior to the close of the hearing, the proceeding shall abate without prejudice to either party to proceed in a court of proper jurisdiction to seek such relief as may be warranted. In the event of death or incompetency of a party after the close of the hearing but prior to a decision, the decision rendered shall be binding upon the heirs, administrators, or executors of the deceased and upon the estate or guardian of the incompetent.
(12) A witness or party may be summoned by subpoena to appear before a Fee Arbitration Commission panel. Any member of a Fee Arbitration Commission panel assigned to hear a dispute, a notary public or the clerk of the Superior Court in any county may issue subpoenas for witnesses and subpoenas duces tecum to compel the production of books, papers, photographs or other documents. The Fee Arbitration Commission Chair or any Chair of a panel, upon motion made promptly, and in any event at or before the time specified in the subpoena for compliance therewith, may quash or modify any subpoena issued for appearance before a Fee Arbitration Commission panel, if the subpoena is unreasonable or oppressive. Witness fees in all proceedings under this rule shall be the same as for witnesses before the Superior Court. When a subpoenaed witness fails to so appear without reasonable excuse, the Supreme Judicial Court or any justice thereof, or the Superior Court or any justice thereof, may, upon application of a member of the Fee Arbitration Commission, Bar Counsel, or other interested person, invoke the provisions of Rule 45(f) of the Maine Rules of Civil Procedure for such failure.
(13) 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 arbitration panel shall require that the attorney bear the burden of proof of an agreement, or other basis for recovery of fees and expenses, and of the reasonableness of the fees and expenses.
(h) Arbitration Award.
(1) The decision of the arbitration panel shall be expressed in a written award, signed by all of the panelists hearing the matter, and thereupon filed with the Secretary. 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.
(2) The decision of the arbitrators and their award need not be in any particular form, but shall contain, as a minimum, a statement of the amount or nature of the award, if any, and the terms of payment, if applicable.
(3) The award and determination of the arbitration panel shall be rendered within 20 days after the close of the hearing, unless otherwise extended by the Chair of the Commission.
(4) A copy of the decision containing the award shall be forwarded by the Secretary to the petitioner, the respondent attorney, their respective counsel if any, the Chair of the Commission, and the Board as soon as reasonably possible after the same has been filed.
(i) Enforcement of the Award. Whenever an arbitration panel finds by its award that all or part of the fee paid by the petitioner should be refunded by the attorney, the attorney shall make the awarded refund within 30 days of receipt of the award. If the attorney fails to make the awarded refund within 30 days, the Board shall refer the matter to Bar Counsel for action pursuant to Rule 6(b)(6). The award rendered by an arbitration panel may be enforced in accordance with the Uniform Arbitration Act, 14 M.R.S.A. § 5927 et seq. Section 5928 of Title 14, relating to proceedings to compel or stay arbitration is not applicable to proceedings under this rule.
(j) Confidentiality. With the exception of the award itself, all petitions, replies, records, documents, files, proceedings, and hearings pertaining to arbitrations of any fee dispute under these procedures and regulations shall be confidential, and, unless otherwise ordered by the Court, shall not be open to the public, press, or any person not involved in the dispute, excepting only the staff and members of the Commission, the Board, the Committee on Judicial Responsibility and Disability in connection with any complaint within its jurisdiction, and any justice of 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.
(1) 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.
(2) [Deleted effective January 1, 1995.].