Special Committee on the Resolution of Fee Disputes
By Geetha Ravindra, chair
Since 1994, the Virginia State Bar's Special Committee on the Resolution of Fee Disputes has overseen an alternative fee dispute resolution program. It was hoped that this program would offer clients who have attorney fee disputes that are not egregious enough to warrant professional discipline an opportunity to obtain resolution through a process less formal than litigation. Currently serving eleven judicial circuits and local bar associations, the fee dispute resolution program has successfully resolved many disputes between lawyers and clients over the years. This program utilizes arbitration as its primary dispute resolution method. Program arbitrators volunteer their time to hear and resolve these disputes.
Over the last decade, the fee dispute arbitration program has not been utilized to the extent anticipated. The Virginia State Bar established a task force in 2002 to evaluate the existing arbitration program and to consider the use of mediation of fee disputes as a precondition of processing a disciplinary complaint. Following a comprehensive national survey, the task force concluded that mediation has been effectively used in attorney-client fee disputes and should be considered in Virginia. The Special Committee on Resolution of Fee Disputes has now formally incorporated mediation into its program and rules.
The goal of the fee dispute program is to support positive relations between attorneys and their clients, as well as improve the public perception of the bar. In an effort to increase public trust and confidence in this program, the rules incorporate a provision that at least one lay citizen serve on an arbitration panel. All the arbitrators and mediators in this program have received training on the rules related to the program, as well as broad information on ethics issues related to fee matters.
In the past year, 127 fee dispute packets were sent to petitioners by Paulette J. Davidson of the VSB staff. In that time period, inquiries were received by circuit chairs from clients in 63 instances and from attorneys in 3 instances. Agreements were returned from clients in 14 cases and from attorneys in 21 cases. There were 5 arbitrations conducted and 4 mediations. In looking at these numbers and in discussing how chairs were answering data collection questions posed by Mrs. Davidson, the committee suggested several changes to the data collection questions. These include, for example, clarifying whether cases settled before the arbitration or mediation, whether cases were conciliated, and whether cases are still pending. Mrs. Davidson will revise the questions asked of chairs and re-send that questionnaire to all chairs to capture more accurate data for the past six months.
In the past year, a subcommittee of the Committee on Resolution of Fee Disputes worked on developing training materials related to attorney-client fee arrangements. These materials will likely be completed soon and disseminated to all fee dispute arbitrators and mediators. Circuit chairs will be encouraged to conduct a local training event to review these materials and answer any questions the participants may have. In addition, chairs will be sent a letter in the next few months highlighting several important procedural aspects of the arbitration process. These include:
- Considering the subject matter expertise of the arbitrators, as it relates to the fee dispute when appointing arbitrators.
- Offering both parties information on the background and experience of the arbitrators who are appointed, and providing parties an opportunity to object to an arbitrator.
- Providing the parties an opportunity to exchange with each other and with the arbitrators relevant factual information and documents in advance of the arbitration proceedings.
- Ensuring that feedback from the parties regarding the proceeding is not sought from them at the conclusion of the hearing in front of the arbitrators, but later through the exit survey that is mailed to them.
It is our anticipation that with these efforts, the arbitration program will be more effective.
Mrs. Davidson agreed to explore whether the fee dispute program materials could be included in the First Day in Practice continuing legal education program. Nader Hasan, Kathryn N. Byler, John D. Whittington, Frank W. Rogers III, and Carolyn M. Grimes agreed to do local bar presentations that encourage attorneys to use the program. Geetha Ravindra’s PowerPoint presentation will be sent to anyone who would like to use it. Mrs. Davidson will mail program brochures to all the general district court chief judges. Nader Hasan agreed to prepare an article for Virginia Lawyer magazine. This article will discuss aspirational language that can be included in a retainer agreement that indicates the parties will use the fee dispute resolution program in the event of a fee issue. Hasan noted that attorneys may be persuaded to use our program if there was data that showed that clients are less likely to sue an attorney for malpractice if they have the opportunity to use the more collaborative fee dispute resolution program. The committee agreed that the client in fact receives a valuable service by talking to Mrs. Davidson and receiving material on the program.
The committee also discussed sending exit survey data to the VSB electronically, in order to capture qualitative information. VSB Deputy Director Mary Yancey Spencer agreed to clarify whether such data could be requested of parties anonymously and whether an online system for such feedback could be developed. If so, she will work with Mrs. Davidson to develop such a system. The committee also considered Robert S. Letnick’s proposed revisions to the program rules. The committee approved the following revisions:
6.a. When the Respondent has agreed to participate in the Program and has returned the completed Agreement to Participate form, a copy of the form shall be provided to the Petitioner by the CCRFD Chair.
5.d. Once an arbitration award has been provided to each of the parties, the CCRFD Chair may provide each of the parties with a follow up questionnaire in order to obtain feedback from each of the parties concerning their experiences with the Fee Dispute Resolution Program.
A fee dispute definitions handout that Mr. Letnick prepared will be shared with James Michael McCauley, ethics counsel for the VSB, and will be combined with an existing glossary. The new glossary will be sent to all chairs for dissemination to their respective arbitration and mediation rosters. Mrs. Davidson prepared a short summary of the life of a fee dispute. This will also be shared with all chairs - particularly newer chairs - to ensure consistency in processing.
The committee discussed the challenge posed by the question on the Agreement to Participate Form as to whether the client alleges an ethical violation that has not already been addressed by the VSB. The committee agreed to add language to that question that explains that if a person checks “yes,” then the fee dispute resolution program may not be used until the ethics issue has been addressed.
Anthony F. Troy researched mandatory fee dispute resolution. He learned that a handful of states do require parties to use either arbitration or mediation. There are no quantifiable incentives however, to require it for Virginia attorneys. Mr. Troy concluded that mandatory participation in the fee dispute resolution program is not feasible in Virginia. He sent a report to that effect to VSB President Manuel A. Capsalis.
The committee would like to encourage judges and attorneys to consider using this program in appropriate attorney-client fee dispute matters.
Committee members for 2009-10 are Geetha Ravindra, chair; Anthony F. Troy, vice chair; lawyer members Carolyn Mary Grimes, Stephen Keith Lewellyn, Bruce Howard Matson, Frank George Uvanni, and Deborah Campbell Welsh; and lay members Joseph C. Fleig and Gloria Twitty.Updated: Aug 27, 2009