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fee dispute frequently asked questions
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Questions Frequently Asked by Attorneys and Clients

(click on the question for the answers)

Voluntary or Mandatory

1. Does the attorney have to participate in fee arbitration? 

2. Can a client be forced to participate in fee arbitration?


Charges

3. Can an attorney charge his client for preparing for and attending the fee arbitration hearing?

Timing

4. Can a client file a request for arbitration after the attorney has filed a lawsuit? 

5. Can a client file a complaint with the State Bar while requesting fee arbitration (and vice versa)? 

6. How long does it take for the hearing to be scheduled? 

7. How can the attorney or client postpone the scheduled hearing? 

8. How long does the whole process take?

Arbitrators

9. Can arbitrators be disqualified? 

10. Do I Have the right to obtain background information about the arbitrator(s) assigned to my case?

Arbitration Process

11. What is the difference between binding and non-binding arbitration? 

12. Can the client take witnesses and/or family members to the hearing? 

13. Where will the hearing take place? 

14. Can a hearing take place if the client is in jail? 

15. Can a hearing take place if a party is out of state?

 

 

 

 

Voluntary or Mandatory

1. Does the attorney have to participate in fee arbitration?

If the client has NOT waived his or her right to fee arbitration, fee arbitration is mandatory for the attorney. If the attorney chooses not to attend the hearing, the hearing will take place without him or her.  The client waives his/her right to fee arbitration if a request for arbitration is not filed within 30 days of receipt of the Notice of Client's Right to Arbitrate from the attorney.  

2. Can a client be forced to participate in fee arbitration?

If the client and attorney have a written fee agreement with an arbitration clause in it, YES. If there is no written fee agreement OR if the written fee agreement does not contain an arbitration clause, NO. (See Business and Professions Code)

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Charges

3. Can an attorney charge his client for preparing for and attending the fee arbitration hearing?

No. The Business and Professions Code prohibits arbitrators from awarding fees to an attorney for his/her time in preparing for and/or attending the fee arbitration hearing. A section of a written fee agreement calling for this is void. 

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Timing

4. Can a client file a request for arbitration after the attorney has filed a lawsuit?

If the client has not waived his or her rights (see Client's Right to Arbitration form), the client may file for fee arbitration.   If an attorney, or the attorney's assignee, commences an action to collect fees or costs in any court or other proceeding, with limited exceptions including provisional remedies, the court action or other proceeding is automatically stayed upon filing a request for fee arbitration with a State Bar approved fee arbitration program.  The party who requested fee arbitration has a duty to notify the court of the stay and attach a copy of the arbitration request form.  If the party who requested or caused the stay has not appeared in the court action or other proceeding, or is not subject to the jurisdiction of the court, the plaintiff in the court action must immediately file a notice of stay and attach a copy of the arbitration request form showing that the proceeding is stayed. Upon request, the Fee Arbitration Program may provide a copy of a notice of automatic stay to the party.

5. Can a client file an ethics complaint with the State Bar if requesting fee arbitration (and vice versa)?

Yes. One does not affect the other. They are totally separate processes. (In fact, no information is shared due to confidentiality laws.)

6. How long does it take for the hearing to be scheduled?

You should hear from the panel chair or sole arbitrator within 30 days of the date on the Notice of Assignment. At that time, they will ask you for your available dates and you will be contacted when a final date is chosen. Your cooperation in supplying as many available dates as possible will help speed the process along. The SCCBA Fee Arbitration Program Administrator will send a written notice of the date, time and location of the hearing.

7. How can the attorney or client postpone the scheduled hearing?

The interested party must contact the panel chair or sole arbitrator. He or she may grant a continuance if the reason is considered to be for good cause. No one else can grant a continuance. No request will be granted in the 72 hour period before the hearing unless it is an emergency. If a request is turned down and the party wants a review of the denial for a continuance, it will be reviewed by the Presiding Arbitrator of the SCCBA Fee Arbitration Program.   The party seeking a review must contact the Fee Arbitration Administrator to ask for the review.  It would be very rare for the Presiding Arbitrator to overrule an arbitrator.

8. How long does the whole process take?

The average time for arbitration is about three months from the date of the filing of the request to the mailing of the arbitrator's decision. 

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Arbitrators

9. Can arbitrators be disqualified?

The attorney or client may disqualify an arbitrator once without cause. This must be done in writing within fifteen days of an assignment of the arbitrator/s. Thereafter, disqualifications will be granted for good cause. An arbitrator cannot be disqualified after the hearing has begun.

10. Do I Have the right to obtain background information about the arbitrator(s) assigned to my case?

Yes. Contact the Fee Arbitration Program to receive background statements about each arbitrator. This statement will include their education and work experience. 

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Arbitration Process

11. What is the difference between binding and non-binding arbitration?

If both parties agree to binding arbitration, in writing, no appeal from the final award will be allowed and both parties will have to abide by the decision. If one or both parties do not agree to binding arbitration, the award will be non-binding which means that each party will have thirty (30) days to vacate or correct the award by filing with the Santa Clara County Superior Court. All awards become binding if neither party takes action within thirty (30) days after the award is mailed.

12. Can the client take witnesses and/or family members to the hearing?

The client has the right to bring witnesses to the hearing. The client should ask the panel chair or sole arbitrator for permission to bring family members to the hearing. (The panel chair will more likely than not limit the number of family members at the hearing.)

13. Where will the hearing take place?

The hearing usually takes place at the panel chair's or sole arbitrator's office, but may take place at the SCCBA office if the panel chair does not have a conference room available.

14. Can a hearing take place if the client is in jail?

Yes. The client can request a continuance if he or she anticipates a quick release. Or, the client may have someone represent him or her at the hearing if he or she notifies the panel chair or sole arbitrator in writing before the hearing.

15. Can a hearing take place if a party is out of state?

Yes. If the party resides more than 150 miles away, he or she can submit additional information in writing to be considered at the hearing. It is, of course, better to attend in person because that allows all parties to ask questions. The party can also ask the panel chair or sole arbitrator if he or she can attend via conference call. 

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