22 CRR-NY 137.6NY-CRR
22 CRR-NY 137.6
22 CRR-NY 137.6
137.6 Arbitration procedure.
(1) Except as set forth in paragraph (2) of this subdivision, where the attorney and client cannot agree as to the attorney's fee or where the attorney seeks to commence an action against the client for attorney’s fees, the attorney shall forward a written notice to the client, entitled Notice of Client's Right to Arbitrate, by certified mail or by personal service. The notice:
(i) shall be in a form approved by the board of governors;
(ii) shall contain a statement of the client's right to arbitrate;
(iii) shall advise that the client has 30 days from receipt of the notice in which to elect to resolve the dispute under this Part;
(iv) shall be 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; and
(v) shall be accompanied by a copy of the request for arbitration form necessary to commence the arbitration proceeding.
(2) Where the client has consented in advance to submit fee disputes to arbitration as set forth in section 137.2(b) and (c) of this Part, and where the attorney and client cannot agree as to the attorney's fee, the attorney shall forward to the client, by certified mail or by personal service, a copy of the request for arbitration form necessary to commence the arbitration proceeding along with such notice and instructions as shall be required by the rules and guidelines of the board of governors, and the provisions of subdivision (b) of this section shall not apply.
(b) If the attorney forwards to the client by certified mail or personal service a notice of the client's right to arbitrate, and the client does not file a request for arbitration within 30 days after the notice was received or served, the attorney may commence an action in a court of competent jurisdiction to recover the fee and the client no longer shall have the right to request arbitration pursuant to this Part with respect to the fee dispute at issue. An attorney who institutes an action to recover a fee must allege in the complaint:
(1) 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
(2) that the dispute is not otherwise covered by this Part.
(c) In the event the client determines to pursue arbitration on the client's own initiative, the client may directly contact the arbitral body having jurisdiction over the fee dispute. Alternatively, the client may contact the attorney, who shall be under an obligation to refer the client to the arbitral body having jurisdiction over the dispute. The arbitral body then shall forward to the client the appropriate papers set forth in subdivision (a) of this section necessary for commencement of the arbitration.
(d) If the client elects to submit the dispute to arbitration, the client shall file the request for arbitration form with the appropriate arbitral body, and the arbitral body shall mail a copy of the request for arbitration to the named attorney together with an attorney fee response to be completed by the attorney and returned to the arbitral body within 15 days of mailing. The attorney shall include with the attorney fee response a certification that a copy of the response was served upon the client.
(e) Upon receipt of the attorney's response, the arbitral body shall designate the arbitrator or arbitrators who will hear the dispute and shall expeditiously schedule a hearing. The parties must receive at least 15 days notice in writing of the time and place of the hearing and of the identify of the arbitrator or arbitrators.
(f) Either party may request the removal of an arbitrator based upon the arbitrator's personal or professional relationship to a party or counsel. A request for removal must be made to the arbitral body no later than five days prior to the scheduled date of the hearing. The arbitral body shall have the final decision concerning the removal of an arbitrator.
(g) The client may not withdraw from the process after the arbitral body has received the attorney fee response. If the client seeks to withdraw at any time thereafter, the arbitration will proceed as scheduled whether or not the client appears, and a decision will be made on the basis of the evidence presented.
(h) If the attorney without good cause fails to respond to a request for arbitration or otherwise does not participate in the arbitration, the arbitration will proceed as scheduled and a decision will be made on the basis of the evidence presented.
(i) Any party may participate in the arbitration hearing without a personal appearance by submitting to the arbitrator testimony and exhibits by written declaration under penalty of perjury.
RESEARCH REFERENCES AND PRACTICE AIDS:
5 NY Jur 2d, Arbitration and Award § 240.
22 CRR-NY 137.6
Current through November 30, 2019
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