Getting Started - Attorneys

Helpful packets to download on local program pages

LightbulbFor ease of use, where there is no prior written agreement to use the FDRP, attorneys can download a complete packet of forms on the local program’s page to start the fee arbitration process.

 

No Prior Written Agreement Between the Attorney and the Client: Summary of Attorneys’ Notice Requirements

Attorneys in New York who represent clients in most civil matters must give clients notice of their right to arbitrate before commencing an action in court for fees.   The notice and accompanying materials must be sent by certified mail or by personal service (137.6(a)(1)).

To summarize, the notice requirements are:

  1. 137.6(a)(1)(i-iii): in a form approved by the Board of Governors; shall contain a statement of the client's right to arbitrate; shall advise that the client has 30 days from receipt of the notice in which to elect to resolve the dispute under this Part;

    The following forms satisfy this requirement:
  2. 137.6(a)(1)(iv): accompanied by the written instructions and procedures for the arbitral body having jurisdiction over the fee dispute, which explain how to commence a fee arbitration proceeding.
  3. 137.6(a)(1)(v): accompanied by a copy of the "request for arbitration" form necessary to commence the arbitration proceeding.
    • Form 137-4a Client Request for Fee Arbitration satisfies this requirement. 
    • Form 137-4a is tailored for each local program and can be found on the local program page within each downloadable packet.

 

Prior Written Agreements Between the Attorney and Client under Section 137.2

Section 137.2 allows different ways for the attorney and client to make agreements about potential fee disputes that may happen between them in the future. 

Summary of Requirements to file for fee arbitration where there is a prior written agreement between the parties:

Section 137.6(a)(2) and Section 6. B. 1-5 “The Fee Dispute Resolution Process” of the Standards & Guidelines gives instructions for how to start the fee arbitration process if the attorney and client have made certain agreements under 137.2.

To summarize, if the client disputes the fee or does not pay the attorney’s fee, the attorney must send the following to the client:

  1. Form 137-3a Standard Written Instructions and Procedures to Clients for Resolution of Fee Disputes Pursuant to Part 137 Of the Rules of The Chief Administrator Where There Is A Prior Written Agreement to Arbitrate
  2. Form 137-4a Client Request for Fee Arbitration (found on the local program’s page)
  3. A copy of the parties’ agreement to arbitrate.

Once the attorney has sent the above to the client, then either the attorney or the client may file for fee arbitration.  Under these circumstances the client must participate in the FDRP. 

 

Helpful Consent Language to Incorporate into Retainer Agreements

These prior written agreements must be "knowing and informed", which means attorney and client must acknowledge certain matters in a writing that they both sign.

For example, if attorney and client want to agree to use the FDRP for future potential fee disputes, they must sign an agreement acknowledging:

  • That they have received and read the official written instructions and procedures for Part 137 and the written instructions and procedures for the local program
  • That they understand that they are not required to sign the agreement.
  • And that client understands that in the absence of this agreement, (s)he would have the right to choose whether to participate in this program.

The following is a list of prior written agreements that the attorney and client may consent to before a fee dispute arises and links to forms that parties may use, or can copy and paste the language directly into retainer agreements:

 

Going to Court: Summary of Attorney’s Pleading Requirement

137.6(b)(i-ii) If the attorney sent the client notice by certified mail or personal service and the client does not file for fee arbitration within 30 days after the notice was received or served, then:

  • the attorney may commence an action in court for fees and
  • the client no longer has the right to pursue fee arbitration.

If the attorney goes to court to recover a fee - whether after giving the client notice or if the dispute is not covered by the FDRP - then the attorney must allege in the complaint:

  1. that the client received notice under this Part of the client's right to pursue arbitration and did not file a timely request for arbitration or
  2. that the dispute is not otherwise covered by this Part.

What to expect once you’ve filed for fee arbitration

What to expect once the fee arbitration is over