ALBANY, May 23 (Reuters) - A proposal by New York court
administrators to prohibit disbarred or suspended attorneys from
participating in fee dispute programs could harm clients and
clog small claims courts with new cases, attorneys from across
the state said.
The fee dispute program was created as an inexpensive and
efficient alternative to litigation for clients who feel they've
been overcharged for legal services. It allows arbitration or,
in some places, mediation to resolve disputes. Attorneys may
initiate fee disputes, but those cases are far less common.
The state Office of Court Administration in March proposed
preventing disbarred or suspended attorneys from taking part in
the 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, some of whom 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.
"If it ain't broke, don't fix it," wrote Rochester attorney
Louis Kash, who is the chair of the Monroe County Bar
Association's fee dispute program.
Kash and others said the proposal could steer some fee
disputes into the courts, which would undermine the purpose of
the arbitration program. Last year, he said, an unnamed Monroe
County attorney was suspended, and the resulting publicity
spurred about 40 former clients to file fee disputes. If the new
proposal were in place, Kash wrote, those cases would have been
diverted into Rochester small claims courts, "an undesirable
result ... because of the likelihood of inconsistent outcomes."
Others took issue with the provision that would bar
attorneys who are the subjects of open complaints from
participating in 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
"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
And in the relatively rare cases in which attorneys initiate
fee disputes, clients could delay arbitration by filing
frivolous complaints, wrote Anthony Sabino of Sabino & Sabino,
who works as a fee arbitrator in Nassau County. The dispute
would then be delayed until the complaint was dismissed.
"By that time, the fee could be beyond recovery," Sabino
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." Cases involving disciplined attorneys could run
afoul of that rule, according to the OCA, but several comments
said that concern is overblown.
"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."
OCA spokesman David Bookstaver declined to comment on
"The comments are there to provide input to the
Administrative Board of the Courts, who will be addressing this
matter in the future," he said.
The board's next meeting is on June 14, but the fee dispute
proposal may not be discussed until a later meeting, Bookstaver
(Reporting by Dan Wiessner)
Follow us on Twitter @ReutersLegal | Like us on Facebook