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FAQ's - Frequently Asked Questions


What is the FDRP?

What is fee Arbitration?

What is fee mediation?

When does the FDRP Apply?

What if I have a question about my attorney's bill, but I'm not sure if I have a fee dispute?

What types of cases are excluded from the rule under 137.1(b)(5) [disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right by a court; or where the fee has been determined pursuant to a court order]?

Who administers the program and how much does it cost?

How does the fee arbitration process start?

I filed a request for fee arbitration, what happens now?

What is the procedure at the arbitration hearing?

What happens after the arbitration hearing?

I received an arbitration award in my favor that requires the other side to pay me money. The 30 days to commence a trial de novo has passed. How do I get my money from the other side?

What if I am not happy with the arbitrator's decision?

How do I commence a trial de novo?

What are the courts’ monetary jurisdictions?

Should I agree ahead of time with my attorney to resolve fee disputes through the FDRP rather than the courts?

Should I agree ahead of time with my attorney to resolve fee disputes through the FDRP rather than the courts and waive the right to de novo review?

What is the FDRP?

Lawyers in New York State are generally required to provide their clients with retainer agreements or letters of engagement which discuss the fees and expenses to be charged.  At the initial conference with your lawyer, you should request a retainer agreement or letter of engagement and ask any questions you may have regarding the fee to be charged.
Despite the letter of engagement and discussions about fees, sometimes disputes arise.  In general, your lawyer may not sue you in court over a fee dispute unless he or she first provided you with notice of your right to utilize the FDRP.  Once you have received this notice you have 30 days to decide whether to use the FDRP.  If you don’t choose to participate in the FDRP within 30 days, your lawyer is free to pursue the matter in court.

The FDRP is made up of a network of State-approved and monitored local programs that resolve attorney-client fee disputes outside of court through arbitration.

What is the fee arbitration?

Arbitration is a hearing conducted by one or more neutral persons who have special training and experience.  One arbitrator or a panel of three arbitrators (at least one of whom must be a nonlawyer) listen to the arguments on both sides and decide the outcome of the dispute.  Fee arbitration is fair, inexpensive and usually faster than going to court.

What is the fee mediation?

In addition to arbitration, some local programs may offer mediation.  This is a process by which both sides meet with the assistance of a trained mediator to clarify issues and explore options for a mutually acceptable resolution.  Mediation provides the opportunity for you and your attorney to discuss your concerns and reach a satisfactory result without going to court.  Unlike an arbitrator, the mediator does not issue a decision.  Participation in mediation is voluntary for your attorney and you, and it does not waive your right to arbitration.  If you are interested in resolving your dispute through mediation, you may indicate this on the Request for Arbitration form.  However, not every local program offers mediation.

When does the FDRP Apply?

  • Your attorney practices in New York and your case involved a civil matter (personal injury and criminal cases are not covered);
  • The amount in dispute is between $1,000 and $50,000 (fee disputes can involve fees that you have already paid your attorney and for which you seek a refund, or fees that your attorney claims are owed by you);
  • The legal representation began on or after January 1, 2002;
  • Your attorney has rendered services to you within two years prior to the filing of the request for fee arbitration.

 

What if I have a question about my attorney's bill, but I'm not sure if I have a fee dispute?

Fee arbitration provides clients and attorneys with an out-of-court option for resolving fee disputes, but that doesn’t mean it’s necessary or a good idea in your case.  If you have a problem with your lawyer’s bill, you should say so.  Sometimes much unpleasantness can be prevented if you and your lawyer simply talk things over.  Ask your lawyer to explain why the bill is higher than you expected.  You may find out that your case was more complicated than you expected and took more time than you realized.  Or your lawyer may agree that it is appropriate to adjust the bill.  If discussion does not solve the problem, you can take the dispute to arbitration under the FDRP or choose to resolve it in court.

What types of cases are excluded from the rule under 137.1(b)(5) [disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right by a court; or where the fee has been determined pursuant to a court order]?

While the FDRP applies to most civil cases, there are some case types where other rules and laws govern attorneys’ fees. For example, the court has jurisdiction to review and approve attorneys’ fees in bankruptcy proceedings and in certain instances involving estates matters in Surrogates’ Court. In these cases, the FDRP would not be the right place to resolve your fee dispute.

In other case types, attorneys’ fees may be regulated by schedules imposed by statutes or rules. For example, fees charged on a contingent basis in medical, dental or podiatric malpractice cases; contingency fees in personal injury, property damage and wrongful death cases; and attorneys’ fees in social security disability cases.
These are just some examples of exceptions. If you are unsure if your case is appropriate for the FDRP, please call your local program administrator for help.

 

 

Who administers the program and how much does it cost?

The FDRP’s Board of Governors has approved a number of local programs which administer the FDRP on a region by region basis. These local programs are run by bar associations or by the court system’s regional Administrative Judges.  All local programs have been carefully reviewed to ensure that they will resolve fee disputes in a fair, impartial and efficient manner.  To find out which local program has jurisdiction over your fee dispute you need to identify the county in which the majority of the legal services in your case were performed.  This is usually (but not always) the county where your lawyer’s office is located. 

The cost of utilizing the FDRP varies from program to program.  You can find out about local program fees by checking the local programs section of the FDRP web site.  Local programs charge about the same or less than it costs to file a case in court.

How does the fee arbitration process start?

There are three ways in which you can enter the FDRP.  In all three situations, the filing of a Request for Fee Arbitration form officially starts the process.
           
Situation 1.  Your lawyer has mailed you a Notice of Client’s Right to Arbitrate.
A dispute over fees exists between you and your lawyer and he or she has provided you with a form entitled “Notice of Client’s Right to Arbitrate” (UCS 137-1).  You now have 30 days to decide whether to utilize the FDRP by filing a form entitled “Client Request for Fee Arbitration” (UCS 137-4a) with the appropriate local program. Once you file the Client Request for Fee Arbitration your attorney will be required to participate in the FDRP unless your dispute is one that the FDRP is not designed to handle.
If you do not file the Request for Fee Arbitration within 30 days, you lose your right to utilize the FDRP and your lawyer will be free to take legal action.

Situation 2. You have not received the Notice of Client’s Right to Arbitrate.
You have not received the Notice of Client’s Right to Arbitrate from your lawyer but decided to look into the FDRP on your own.  You may have found information on this website, contacted a local program directly or asked your attorney to provide you with information about the FDRP.  If you believe you have a fee dispute you should read the Fee Dispute Brochure carefully.  If you then want to use the FDRP, complete the Client Request for Arbitration form by downloading a packet from the local program’s page (UCS 137-4a) and file it with the local program.   Once you file this form, your attorney will be required to participate in the FDRP unless your dispute is one the FDRP is not designed to handle. 
 
Situation 3.  You and your lawyer have agreed ahead of time to use the FDRP.
You and your attorney previously agreed in writing to resolve fee disputes through the FDRP rather than in court.  You probably agreed to this option when your attorney first began representing you and after you had the opportunity to read about the FDRP and how it works.  If you believe that you have a fee dispute, you may simply file the Client Request for Arbitration form (UCS 137 - 4a) with the local program, together with a copy of the agreement to arbitrate.  Filing the request form with the local program will start the process and your attorney will be required to participate. 

Alternatively, your attorney can start the process by filing a Request for Arbitration with the appropriate local program.  If your attorney starts the process, you will be required to participate under the terms of your agreement.

I filed a request for fee arbitration, what happens now?

The process officially starts once you file the Client Request for Arbitration form with the local program (and pay the administrative fee, if there is one).  Upon receiving your Request for Arbitration, the local program administrator will forward it to the attorney, who then has 15 days to complete an Attorney Response form (UCS 137-5a) and return it to the local program, with a copy to you. 
Unless the fee dispute is rejected by the local program for jurisdictional reasons, you will then be given 15 days advance notice of the time and place of the arbitration hearing and the identity of the arbitrator(s). 
Prior to the arbitration hearing someone from the local program may contact you in an effort to settle the dispute.  In addition, some local programs may offer mediation services and you may be asked whether you wish to participate in mediation.  Mediation is voluntary for both sides.  If one side does not wish to mediate, or the attempt at mediation proves unsuccessful, the next step in the process is the arbitration hearing.

What is the procedure at the arbitration hearing?

Both parties have the right to present evidence and call witnesses. The burden of proof is on the attorney to prove the reasonableness of the disputed fee by a preponderance of the evidence.  The attorney must present documentation of the work performed and the billing history. If witnesses are called, both parties have the right to question the witnesses at the hearing.  Arbitration is less formal than court, so you do not necessarily need a lawyer to help you prepare for and/or represent you at the hearing.  However, you may, of course, appear with an attorney at your own expense.

What happens after the arbitration hearing?

Your arbitration hearing will result in a decision (arbitration award) issued by the arbitrator(s) within 30 days of the hearing.  The arbitration award will be final and binding on both you and your attorney, unless either of you seeks a trial de novo within 30 days.

I received an arbitration award in my favor that requires the other side to pay me money. The 30 days to commence a trial de novo has passed. How do I get my money from the other side?

In most instances, the party against whom the award has been rendered will pay as the arbitration award becomes binding on the parties if de novo review is not sought. However, if payment does not occur, the arbitration award must be confirmed and entered as a judgment of the court to be enforceable. You have one year after the date of delivery of the award to confirm the award by commencing a proceeding in the appropriate court. Confirmation of arbitration awards is governed by CPLR 7510.

What if I am not happy with the arbitrator’s decision?

If you are unhappy with the arbitrator’s decision, you may reject the award and commence a trial de novo. A trial de novo means that either you or your attorney can reject the arbitration award by filing a court action within 30 days after the award has been mailed. The arbitration award is not used as evidence in the court case. A trial de novo is not an appeal and you do not have to argue that the arbitrator was wrong. By commencing the new action you essentially erase the arbitration award and start over.

Since a trial de novo obviously will add significantly to the time and expense of resolving your fee dispute, you and your attorney may wish to waive this right ahead of time in writing. However, keep in mind that if you do so and agree to final and binding arbitration, the arbitrators’ decision can be vacated only on very limited grounds. Vacating an award is different from a trial de novo. It is more like an appeal of the award and in order to vacate the award, the court must review the award itself and determine whether it should be overturned. This process is governed by CPLR Article 75.

How do I commence a trial de novo?

Whether you are commencing an action requesting declaratory relief (I don’t owe the other party money) or monetary relief (The other party owes me money), effective January 1, 2011, you may commence the action in any court that has jurisdiction over the amount in dispute.  However, the Town and Village Courts do not have jurisdiction to entertain declaratory judgment actions.  Please see the answer below for the courts' monetary jurisdictions.

What are the courts’ monetary jurisdictions?

The Supreme Court, a statewide court, has unlimited jurisdiction (e.g. any amount) but generally hears cases outside the authority of the lower courts such as civil matters beyond the monetary limits of the lower courts’ jurisdiction.  Claims for more than $25,000 in New York City must be filed in Supreme Court.  Claims for more than $15,000, outside New York City, must also be filed in Supreme Court.

In New York City, claims for $5,000 or less may be filed in the Small Claims Court and claims for $25,000 or less may be filed in the New York City Civil Court

Outside New York City, claims for $3,000 or less may be filed in the Town and Village Courts and claims for $15,000 or less may be filed in the City Court.  If in Nassau County, and certain parts of Suffolk County, claims for $15,000 or less may be filed in the District Court.

Should I agree ahead of time with my attorney to resolve fee disputes through the FDRP rather than the courts?

It’s up to you. Your attorney cannot force you to enter into such an agreement. The FDRP offers a quick, inexpensive and informal means of resolving fee disputes. Litigation in the courts can take longer and cost more. Unlike litigation in the courts, arbitration is confidential and closed to the public. The speed, informality and less confrontational nature of arbitration allows the parties to quickly get on with their lives.

On the other hand, you may prefer the formality of a lawsuit, and to have your dispute resolved by a judge or jury rather than by arbitrators. In a lawsuit, you have the right to conduct depositions and engage in pretrial fact finding, which are generally not permitted in arbitration, and to appeal a judgment that you think is contrary to law.
So think it over carefully. To enter into a valid agreement ahead of time, the agreement must be in writing and specify that you read the written materials describing the rules and procedures of the FDRP and the appropriate local program.

Should I agree ahead of time with my attorney to resolve fee disputes through the FDRP rather than the courts and waive the right to de novo review?

If you want to preserve your right to go to court to resolve disputes over fees, then you may wish to avoid final and binding arbitration and you should not waive your right to a trial de novo. On the other hand, if you are interested in achieving closure quickly and inexpensively and want to avoid litigation in the courts, then you may wish to choose final and binding arbitration by waiving your right to a trial de novo.
To enter into a valid agreement ahead of time and waive the right to de novo review, the agreement must be in writing and specify that you read the written materials describing the rules and procedures of the FDRP and of the appropriate local program. The written agreement must specify that you understand that you are waiving your right to a trial de novo.