ABA 2006 Survey of Fee Arbitration Programs

Introduction

More often, lawyers are encouraged to use alternative methods to litigation to resolve fee disputes between themselves and their clients. In some jurisdictions, a lawyer is obligated under the jurisdiction's rules of professional conduct to inform the client about the availability of a bar's alternative dispute resolution program to resolve a fee dispute before the lawyer may initiate litigation against the client. Alternative dispute resolution methods may include arbitration, mediation, and facilitated settlement. They are generally faster, less expensive and cumbersome than litigation, may help preserve the attorney-client relationship, and help enhance the public perception of the legal profession. However, resolution of a fee dispute when a lawyer declines to engage in an alternative dispute resolution process remains a challenge for clients, the public and concerned lawyers.

In 1992, the American Bar Association issued the McKay Report (Report of the Commission on Evaluation of Disciplinary Enforcement). Recommendation 3 of the report recognized that the lawyer disciplinary system was not designed to address complaints about the quality of lawyers' services or fee disputes. Recommendation 3 called upon each of the jurisdictions to expand their system of lawyer regulation to include a Court-established, mandatory fee arbitration program.

To implement this recommendation, the Standing Committee on Client Protection promulgated the ABA Model Rules for Fee Arbitration. In August 1995, the Model Rules were adopted by the American Bar Association House of Delegates. The Model Rules were largely patterned on the experience of the two leading jurisdictions that had enacted mandatory fee arbitration programs in 1978: New Jersey (by court rule) and California (by statue).

In 2006, the Standing Committee on Client Protection conducted its second survey of state and local fee arbitration programs. An updated questionnaire was distributed to all 50 states, the District of Columbia, and local bar associations. Thirty-five jurisdictions and 14 counties responded to the survey. (Twenty-seven jurisdictions responded to the 1999 Survey.) A guide to the responding entities can be found at the end of this Introduction.

The Survey consists of nine charts organized by jurisdiction. In some instances exact figures were not available. Therefore, approximate figures were provided. As the data contained in these charts was compiled from statistics reported to the ABA by the various jurisdictions, its accuracy is, therefore, dependent upon the reporting agencies. You may wish to contact a specific jurisdiction if you have further inquiries.

Questions about the Survey and how to contact specific jurisdictions should be addressed to John A. Holtaway, Client Protection Counsel, ABA Center for Professional Responsibility, 321 North Clark Street, 15th Floor, Chicago, Illinois 60610, (312) 988-5298 or [email protected].