Getting Started - Clients

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)).

Once an attorney has served the client with the necessary materials to file for fee arbitration, the client has 30 days to file to use the FDRP. The 30 days start from the day the client received or was served with the notice. If the client does not file for fee arbitration within that timeframe, the attorney may go to court and sue for fees.

Clients can also file for fee arbitration on their own by downloading the forms from the local program page, filling them out and sending them in to the local program with any applicable fee.

 

Potential future fee disputes

The attorney and client can also agree ahead of time to resolve potential fee disputes that may happen between them in the future. The following sections explain this in more detail:

 

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What to expect once you’ve filed for fee arbitration

Starting the process

Assuming there is no prior written agreement to use the FDRP [link to (link to attorneys/ Prior Written Agreements Between the Attorney and Client under Section 137.2)], the process officially starts once the client files the Client Request for Fee Arbitration form with the local program (and pays the administrative fee if there is one). The local program administrator will then forward a copy of the request to the attorney, who then has 15 days to complete an Attorney Response to Request for Fee Arbitration form (UCS 137-5a) and returns it to the local program, with a copy to the client.

Unless the fee dispute is rejected by the local program for jurisdictional reasons, parties will be given 15 days advance notice of the time and place of the arbitration hearing and the identity of the arbitrator(s).

 

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Settlement

Parties are free, and encouraged, to settle their disputes before the arbitration. Before the arbitration hearing, someone from the local program may contact the parties to settle the dispute.

When parties settle the fee dispute during the arbitration hearing, or before the hearing but after the administrator has sent all evidence and prepared testimony to the arbitrator or mediator, the parties should use the stipulation of settlement form with the allocution converting the stipulation to an arbitration award form and submit it to the arbitrator. The arbitrator may then convert the settlement to an award. Once this is done, the administrator will close the case.

 

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Mediation

Also, some local programs may offer mediation services and parties may be asked whether they want to participate in mediation. Mediation is voluntary for both sides. If one side does not want to mediate, or the attempt at mediation is unsuccessful, the next step in the process is the arbitration hearing.

 

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Assigning the arbitrator

The administrator will assign the case to either a solo arbitrator if the amount in dispute is less than $10,000 or to a panel of three arbitrators if the amount in dispute is $10,000 or more.

LightbulbParties can also agree not to use a panel by signing a consent.

The panel of arbitrators will include an attorney who chairs the panel (acts as the lead arbitrator) and at least one arbitrator who is not an attorney. The third arbitrator can either be an attorney or a non-attorney.

Parties do not choose their own arbitrators; they are assigned by the administrator based on arbitrator availability and subject-matter knowledge where appropriate.

 

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Personal appearance at the arbitration

Woman in a video callMost hearings are now being held remotely, usually on a platform like Teams or Zoom.

Any party may also appear by submitting testimony and evidence under penalty of perjury (137.6(i)) - also known as "appearing on paper".

The length of the process varies by program, but the average length of a case is about 27 weeks from the date the fee dispute was filed to the date the award is mailed to the parties. The FDRP annual reports (link to about us/ FDRP annual reports) show about how long each individual program takes to close a case.

 

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Procedure at the arbitration

  • Both parties have the right to present evidence and call witnesses.
  • The attorney will present to the arbitrators first. The burden of proof is on the attorney to prove the reasonableness of the disputed fee by a preponderance of the evidence (usually described as more likely than not, even if by a small amount). There is no burden on client to prove that fee was unreasonable. The attorney must present documentation of the work performed and the billing history. 
  • The client may then question the attorney on attorney’s presentation.
  • Then the client may present to the arbitrator.
  • The attorney can then question client on client’s presentation.
  • Throughout the hearing, the arbitrator(s) may ask questions of the parties and of witnesses, if any.
  • Attorney makes closing remarks.
  • Client makes closing remarks.
  • If witnesses are called, both parties have the right to question the witnesses at the hearing. Arbitration is less formal than court, so parties do not necessarily need lawyers to help prepare for and/or represent them at the hearing. However, parties may, of course, appear with an attorney at their own expense.

 

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The death of an attorney before client could seek a refund of paid fees

Once an administrator or executor has been appointed a claim may filed against the estate. If no executor or administrator has been appointed, contact the Surrogate's Court in the county where the attorney lived about filing a creditor's petition to have someone appointed. If legal assistance is needed in preparing and filing a creditor's petition, parties may contact an attorney.

Surrogate's Courts in NYC | Surrogate's Court outside NYC

 

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What to expect once the fee arbitration is over

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

Confirming the award: In most instances, the person who "lost" will pay because arbitration awards are binding if neither party commences a trial de novo. However, if a party who is required to pay does not do so, the "winner" must confirm the arbitration award in the appropriate court, within one year after the date of delivery of the award. The award is then entered as a judgment which makes the award enforceable through the court. Confirmation of arbitration awards is governed by CPLR 7510.

Trial de novo: If a party is not satisfied with the arbitrator’s decision, that party may reject the award and commence a trial de novo. This is done 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 parties do not have to argue that the arbitrator was right or wrong. By starting the new action, the award is essentially erased, and the parties start over.

 

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Jurisdiction of the courts and the trial de novo

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 $50,000 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 $10,000 or less may be filed in the Small Claims Court and claims for $50,000 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.

The Town & Village Courts do not have jurisdiction to entertain declaratory judgment actions.

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Requests to adjourn a Fee Dispute Arbitration or Mediation

The scheduling of and preparation for Fee Dispute Arbitrations and Mediations requires great effort and coordination on the part of the Local Program Administrators and the arbitrators and mediators, who prepare in advance of the hearing or session date. Therefore, adjournments are within the discretion of the arbitrator or mediator before whom the hearing or session is scheduled and are rarely granted.

 

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