Helpful packets to download on local program pages
For 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:
- 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: - 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.
- Form 137-3 Standard Written Instructions and Procedures to Clients for the Resolution of Fee Disputes Pursuant to Part 137 of the Rules of the Chief Administrator along with the local program rules, that can be found on the local program page, satisfy this requirement.
- 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:
- 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
- Form 137-4a Client Request for Fee Arbitration (found on the local program’s page)
- 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:
- Client and attorney may agree to use the FDRP to resolve potential fee disputes that may come up in the future: 137-13 Consent to Resolve Fee Dispute by Arbitration Pursuant to Part 137.2(b) of the Rules of the Chief Administrator
- Client and attorney may agree to use the FDRP to resolve potential fee disputes that may come up in the future, and waive the right to a trial de novo: 137-14 Consent to Submit Fee Dispute to Arbitration Pursuant to Part 137.2(c) of Rules of the Chief Administrator and to Waive the Right to Trial De Novo
- Some people ask whether they should agree ahead of time to use the program and waive the right to a trial de novo. The answer is entirely up to the parties. Some things to consider are:
- A trial de novo, which examines the parties’ evidence without reference to the arbitration award, will add significantly to the time and expense of resolving a fee dispute.
- However If the parties 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. To vacate the award, the court reviews the award itself and determines whether it should be overturned, for example on grounds of bias. This process is governed by CPLR Article 75.
- Some people ask whether they should agree ahead of time to use the program and waive the right to a trial de novo. The answer is entirely up to the parties. Some things to consider are:
- Client and attorney may agree to use the FDRP to resolve potential fee disputes that may come up in the future through mediation (only applies if the program has a mediation program, like the program serving Bronx and New York Counties): 137-15 Consent to Submit Fee Dispute to Mediation Pursuant to Part 137 of the Rules of the Chief Administrator
- Client and attorney may agree to use a different program to resolve potential fee disputes that may come up in the future:
137-16 Consent to Final and Binding Arbitration in an Arbitral Forum Outside Part 137 Under 137.2(d) of the Rules of the Chief Administrator (2017)
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:
- 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
- that the dispute is not otherwise covered by this Part.