|What Is The Legal Fee Arbitration Program?How Does Binding Fee Arbitration Work?||Should I Be Represented By An Attorney At The Hearing?When Can I Expect A Decision From The Arbitrators?|
Note: This pamphlet is available online only.
The Fee Arbitration Program is an informal, free service provided by The Florida Bar to resolve fee disputes between attorneys and clients and between attorneys. The arbitration process may be initiated by either the client or the attorney and may be used instead of a lawsuit to settle a fee dispute.
The sole purpose of the arbitration hearing is to decide the fair and reasonable value of the legal services provided by the attorney for the client. Participation in the program is not mandatory. Written consent by both parties is required in order to participate in the fee arbitration program.
The Florida Bar encourages the friendly resolution of all fee disputes whenever possible. However, if a dispute cannot be resolved, the Fee Arbitration Program is available and authorized by the Florida Supreme Court to settle fee matters.
Binding arbitration means that the involved parties agree to accept the decision of the arbitrators. In the Bar’s program, after the parties agree to arbitrate and they file the required forms with the program administrator, one or more arbitrators are chosen to hear the case. If the dispute is $15,000 or less, one arbitrator is appointed to hear the case. If the amount is more than $15,000, then a panel of three arbitrators is appointed, one of whom will be named chair. If both parties in a dispute in excess of $15,000 agree, then a single arbitrator can be appointed to hear that case. Likewise, a party can request that a panel be appointed to hear an extraordinary case involving $15,000 or less. In all cases where there is a three-member panel, at least one member must be a non-lawyer and one must be a lawyer.
The arbitrators will hear testimony from both sides and take evidence from which they will make a decision. The only question the arbitrators will address is the “fair and reasonable value” of the lawyer’s services. Complaints about an attorney’s conduct or possible ethical violations should be filed through The Florida Bar’s Lawyer Regulation Department.
The arbitrators need to learn as much as possible about the fee dispute and the matter the attorney is handling or has handled. Therefore, in addition to the information you supply on the required printed form, the following may be helpful in support your dispute:
Copies of the attorney’s bills;
Any records you have of the time spent by the attorney on the case;
Copies of any written fee agreements;
Copies of correspondence between the parties regarding the fee dispute;
Copies of all work done by the lawyer (i.e. marital separation agreement, deeds, contracts, etc.); and
Any other documents relating to the attorney’s fee or the case.
All records, documents, files, proceedings and hearings pertaining to fee arbitration are open to the public.
The hearing must be scheduled within 45 days of the date the sole arbitrator or panel was assigned. Its decision should be made within 10 days after the close of the hearing, unless the chair of the standing committee extends that time for good cause.
The arbitration may proceed if one party does not attend, as long as that party received proper notice of the hearing. Postponements will be granted only if good cause is shown. Even if one party does not attend, no award will be made without the presentation of evidence to support the claim.
If the parties agree, they may waive the hearing and instead submit their case in writing, together with exhibits and other evidence. The arbitrator(s) will make the decision based on the evidence submitted.
All parties and witnesses will be sworn in before they testify. The arbitrators, if they so desire, may request opening statements. In any event, all parties will be given an opportunity to present evidence. Arbitrators are only concerned with evidence directly related to the fee dispute. Depositions shall be allowed only for the perpetuation of testimony. All other pre-hearing discovery is not permitted.
The arbitrators may ask questions at any time during the hearing. Each party should answer each question as completely as possible. The arbitrators will be better able to reach a fair decision if they have a good understanding of each position and the reasoning behind it.
The purpose of arbitration is to resolve legal fee disputes quickly and inexpensively without having to hire an attorney to represent you. However, should you question your ability to represent yourself, you have the right to be represented by an attorney at any arbitration hearing at your own cost.
A decision should be made within 10 days after the close of the hearing, unless extended by the chair of the standing committee for good cause. The decision of the arbitrators shall be in writing, which will include a brief explanation of the award and given to the parties.
If one of the arbitrators does not agree with the majority’s decision, then that arbitrator should sign the award separately, but the award is still binding if signed by the majority of the arbitrators. An award may also be entered upon consent of all the parties. Once the award is signed, the hearing may not be reopened except upon consent of all parties and the chair or sole arbitrator. The award may be confirmed, set aside, modified, or corrected only in accordance with Chapter 682, Florida Statutes, as amended.
There is no charge to any party. You may incur expenses if you employ an attorney to represent you, or if you wish to employ a stenographer to record the hearing proceedings.
Submit a completed agreement to arbitrate form , to the Fee Arbitration Program Administrator, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300. Once both sides have consented in writing to submit their dispute to the program, the administrator shall assign the file to an arbitrator (or arbitration panel, if necessary). The process of assigning an arbitrator (or panel) may be delayed if a volunteer arbitrator is not immediately available in your area. Since this is a free service, The Florida Bar does not pay the arbitrators who are assigned to your case. Arbitrators donate their time because they believe in the value of resolving disputes by means other than the court system. Your matter will be assigned to an arbitrator within the circuit where the attorney is located. Delays may be eliminated if the parties are willing to travel to another circuit for the arbitration hearing.
- DISCUSS LEGAL FEES and RELATED COSTS DURING THE INITIAL CONSULTATION and DEMAND A WRITTEN FEE AGREEMENT. Make sure you understand what the agreement does and does not cover. Is the attorney being paid by the hour? Is the attorney being paid a flat fee? Is there a fee cap, or maximum fee? Is there a minimum fee? Is the fee contingent on a recovery of funds? Or is the fee a combination of any of the above? Will the attorney negotiate the fee? Is the attorney sharing the fee with another attorney? If an attorney is being hired for litigation, does the fee agreement include appeals?
- When a deposit or ‘retainer’ is requested, discuss whether any part of it will be refunded if the case does not proceed. If an attorney is billing by the hour, discuss the need for a monthly statement so the client can be aware of the costs associated with the case. If an attorney is billing by the hour, in what increments does the attorney bill time? Tenths of an hour? Quarter hours? Precise to the second?
- If an attorney accepts a case on a contingency basis, make sure the client understands how it will work. Contingency means the client won’t be charged attorney’s fees if the case is lost; but the client may still be responsible for costs such as filing fees, investigators and/or transcripts. If the client wins or the case settles, the attorney is paid a percentage of the money recovered. The client should be knowledgeable of the attorney’s percentage and whether or not it will be taken before or after costs are subtracted.
- If there is a contingency fee agreement, discuss the need for a monthly or periodic statement itemizes expenses incurred to date. If an attorney accepts a case on a contingency fee basis, is the attorney advancing expenses? Does the client control how much money the attorney spends on expenses? Must any expenses be approved in advance by the client? How will the expenses affect what the client can net at the end of the case? Are specific expenses clearly defined? For example, how much, if anything, will the client be charged for facsimiles? How much will the client be charged for in office copies versus copies made by outside vendors? Will the client be charged for scanned documents? Under what circumstances might a client be charged for the attorney’s meal?
- What if the attorney wants to resign? Is any portion of the fee refundable? Can an attorney resign? Under what circumstances? What if the client wants to change attorneys, what will be owed to the original attorney?
- Do not sign a fee agreement that you do not understand. Consider requesting a provision for arbitration of fee disputes be included in your written fee agreement. Before making such a request, however, please be sure to understand the pros and the cons of being bound to participate in the Fee Arbitration program.
The material in this pamphlet represents general legal advice. Because the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.
[Updated November 2014]