SUBJECT

Proposed Revisions to the State Bar’s Model Rules of Procedure for Fee Arbitrations

BACKGROUND

In November 2006, the Board of Governors approved the State Bar’s Model Rules of Procedure for Fee Arbitrations.  California’s 45 local bar fee arbitration programs are encouraged, though not required, to adopt the Model Rules to ensure that programs are in compliance with State Bar’s Guidelines and Minimum Standards for the Operation of Mandatory Fee Arbitration Programs (“Minimum Standards”) and the law. 

As a result of amendments made to Minimum Standards in 2007, revisions to the Model Rules became necessary to track those amendments. In addition, new Model Rules were included to reflect Minimum Standards inadvertently omitted from prior Model Rules.  The Mandatory Fee Arbitration (MFA) Committee has also proposed other revisions to clarify rules or comport with recent case law. A brief description of the reason for specific Model Rules changes is set for the in the attached agenda item to the DOC Committee.

At the request of the State Bar’s Committee on Mandatory Fee,Arbitration (“MFA Committee”), the Board’s Discipline Oversight Committee (“DOC”) released the proposed revisions to the State Bar for public comment for a period of 45 days. 

PROPOSAL

Suggested revisions to the Model Rules would:

  • Define lay arbitrator consistent with Minimum Standard para. 20
  • Expand definition of trial to include private arbitration following non-binding fee arbitration, as established by Schatz v. Allen Matkins (2009) 45 Cal.4th557;
  • Set forth statutory requirement of lawyer’s notice to client of right to fee arbitration to comply with Minimum Standards;
  • Provide for notice of attorney responsibility prior to service of notice of assignment of panel consistent with Minimum Standards;
  • Permit dismissal “with prejudice” when parties have settled to permit re-filing if settlement terms are not satisfied;
  • Set forth requirement that judges be enrolled with State Bar on active status to serve as a fee arbitrator consistent with Minimum Standards;
  • Provide for automatic post-award interest in award, deleting from the required language of an award an automatic pre-award interest consideration;
  • Include option to request arbitrator amendment of award, consistent with Karton v. Segreto (2009) 176 Ca.App.4th1; and
  • Provide for discretionary referral by arbitrator or program of attorney’s misconduct to State Bar consistent with Minimum Standards.
ANY KNOWN FISCAL/PERSONAL IMPACT

None.

ATTACHMENTS
SOURCE

State Bar Board Discipline Oversight Committee (DOC), January 8, 2010

COMMENT DEADLINE

February 23, 2010

DIRECT COMMENTS TO:

Jill Sperber, Director
The State Bar of California
Office of Mandatory Fee Arbitration
180 Howard Street, 6th fl.
San Francisco, CA 94105