A recent Reuters Legal story, “Comments Oppose OCA Proposal on Fee Dispute Program” reports that the state Office of Court Administration (OCA) proposed preventing disbarred or suspended attorneys from participating in fee dispute programs.  Under the proposal, resolution of fee disputes involving attorneys facing disciplinary action would be delayed until the disciplinary proceedings were complete.  But a number of attorneys say the proposed rule change could harm clients and clog small claim courts with new cases.

The fee dispute program was created as an inexpensive and efficient to litigation for clients who feel they’ve been overcharged for legal services.  A number of attorneys, some of who arbitrate fee disputes, wrote in public comments that the proposal could block clients with legitimate cases from using the program and that an attorney’s misconduct is irrelevant unless it is directly related to a client’s fee dispute.

Louis Kash, Rochester attorney and chair of Monroe County Bar Association’s fee dispute program, said the proposal could steer some attorney-client fee dispute cases into the courts, which would undermine the purpose of the arbitration program.  Others took issue with the provision that would bar attorneys who are the subjects of open complaints from participating in the fee dispute programs.  Claims of professional misconduct are kept confidential until an attorney is formally disciplined, but the fee dispute rule, several people said, could force attorneys to out themselves as the subjects of complaints.

“The mere fact of a complaint is hardly compelling evidence that the lawyer actually engaged in misconduct,” wrote Richard Supple, the chair of the New York City Bar Association’s Professional Discipline Committee.  NYCBA opposes the proposed rule.  Under the current program, arbitrators are allowed to determine only whether a fee was reasonable and are barred by state regulations from considering “claims involving substantial legal questions, including professional malpractice or misconduct.” 

“Arbitrators understand that they cannot resolve issues of malpractice or other legal questions,” wrote Malvina Nathanson, an arbitrator with the New York County Lawyers’ Association’s fee dispute program.  “However, whether the fees were reasonable in terms of the services rendered can be determined without regard to malpractice.”