No. If the client does not want the dispute resolved in this manner, no arbitration is held.
Does the lawyer have to arbitrate?
No. But if the lawyer elects not to arbitrate, the process may continue without his participation as a party at the hearing. If the client prevails in such a hearing, the award becomes prima facie evidence in any future litigation over the fee, and the client may be furnished with free counsel if such litigation is needed.
How are legal fees determined?
Abraham Lincoln once emphasized the value of a lawyer's time when he said, "A lawyer's advice is his stock in trade." The value of the professional services of the lawyer are not easily measured since legal matters differ widely and no two factual situations are exactly alike. Therefore, in most instances, the fee will depend upon the factors involved in the specific case at hand and cannot be determined by any pre-established general fee schedule. The elements most often considered include:
1. the time and labor required, the novelty and difficulty of the question involved, and the skill needed to perform the legal service properly;
2. the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations requested by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers, performing the services;
8. whether the fee is fixed or contingent.
How are the awards collected?
In most cases, the losing party tenders payment within 90 days. If this does not occur, the award may be filed with the Superior Court of the county of the losing party and it becomes the equivalent of a judgment of that court. It may be enforced by the parties just as any other Superior Court judgment. The State Bar may be able to assist in the collection process, but its participation in the arbitration process normally ends with the filing of the award.
How can I get more information about Fee Arbitration?
You complete a form known as a petition. This may be obtained by writing or calling the State Bar of Georgia.
How long does arbitration take?
Many cases settle before an arbitration hearing takes place. Some do so within a few weeks, while others take much longer. If the arbitration process goes to conclusion without settlement, a case takes, as an average, eleven months to complete. Of course, some cases take less than this while more difficult ones may take longer.
How much will I pay for Fee Arbitration?
Nothing. This is a free public service of the State Bar. However, in the event appeals, subsequent litigation, or collection actions are required after an arbitration is concluded and an award is received, the parties bear their own expense for such additional litigation.
Is the Fee Arbitration award binding?
It is if both parties so agree. In such cases, it cannot be appealed except for very limited reasons. If both parties do not so agree, it will be considered as prima facie evidence in any future litigation. And in certain situations, an award in favor of the client may entitle him or her to the free services of an attorney to represent the client in any necessary subsequent litigation regarding the fee.
What can clients do to avoid fee disputes in the future?
Always ask your lawyer for a written fee agreement, and make sure you understand exactly what it does and does not cover. This is critical not only because a clear initial agreement tends to prevent subsequent disputes, but also because arbitrators in most cases cannot render any award that is contrary to the terms of an executed written fee contract. If you were renting a house, you would ask if the costs of electricity, water and garbage pick-up were included in the rental price. Ask your lawyer specific questions, too. For instance, will you be charged each time you telephone the lawyer? Does the fee include making reports to you on a regular basis? What does "regular basis" mean to the lawyer? Will the fee go up if the case takes longer than either of you expects? If the lawyer charges by the hour, ask for a monthly bill. That way, you will know how much the case is costing as it moves along, and you will not be in for a big bill, or possibly a big shock, at the end. Some lawyers will take your case on a "contingency" basis when you sue someone for money. This means you will not be charged attorneys fees if you lose the case. If you win, you pay the lawyer a percentage of the money the court awards you. Before you agree to a contingency fee, make sure you know how it will work in your case. What will the lawyer's percentage be? Will it be taken from the amount you win before or after court costs are subtracted? Will the fee be less if the case settles out of court? What if you settle the case before trial, but after the lawyer has done all the work to get ready for trial? Will the fee be more if you lose in the trial court, but appeal the decision to a higher court and win? Most lawyers charge retainers. Get a clear understanding as to whether it is refundable or nonrefundable in the event the case or your attorney/client relationship concludes prior to its expected time.
What cases may be fee arbitrated?
In general, all disputes between clients and their attorneys over fees may be arbitrated. There are a few exceptions as follows. Fees charged by a lawyer who is, or who was when the services were performed, not licensed to practice law in the State of Georgia. Cases involving services performed outside of Georgia or from an office located outside of Georgia. Cases where there was no express or implied lawyer/client relationship between the parties at the time the legal services in question were performed. Cases where the disputed fee is $750 or less. Fees which are governed by law or statute. Cases where the full amount or all terms of which have already been fixed or approved by order of a court. Cases filed longer than two years following the date on which the controversy first arose. Cases where the petition fails to include all of the following information: date; signature of petitioner; the identities of both the client and the lawyer and the address of both; a statement of the nature of the dispute and the particulars of the petitioner's position, including relevant dates; a statement that the petitioner has made a good faith effort to resolve the dispute and the details of that effort; the agreement of the petitioner to be bound by the result of the arbitration. Cases in which the petitioner's claim does not appear to have merit. If your case is determined to be covered by one or more of the foregoing exceptions, you will be notified that jurisdiction is declined. While this means that no arbitration hearing will be conducted, it does not affect litigation or any other remedy that you may wish to consider in lieu of arbitration.
What if my complaint is for negligence, malpractice or unethical conduct?
The State Bar has no program to handle cases involving negligence or malpractice claims. Litigation in the State or Federal Courts is the remedy in such cases. Complaints regarding unethical conduct may be filed with another division of the State Bar. Forms to register such complaints may be obtained by calling or writing the Consumer Assistance Program at the State Bar of Georgia. The Fee Arbitration Program is designed to handle disputes that are primarily fee oriented. If your case is really founded on malpractice or professional misconduct, the Committee has the discretion to terminate or suspend any fee arbitration, and except in unusual cases, that is what will occur.
What is Fee Arbitration?
The State Bar of Georgia, on behalf of the Georgia Supreme Court, administers as a service to both the general public and lawyers of Georgia the Fee Arbitration program. The actual arbitration is a hearing conducted by one or more persons not involved in the dispute. In most cases, two experienced attorneys and one non-lawyer public member serve as the arbitrators. Like judges, they hear the arguments on both sides and decide the outcome of the dispute. Arbitration is impartial and usually less expensive than going to court. The purpose of the program is to provide a convenient mechanism for the resolution of disputes between lawyers and clients over fees.
What is expected of you at the arbitration hearing?
Arbitration hearings are informal. You may be required to swear to tell the truth, but that is the only part of the arbitration that is like a court trial. Either party may elect to be represented by an attorney, but one is not required. Furthermore, the Fee Arbitration program was designed so that the clients can present their side of the dispute without incurring the expense of employing a second attorney to reduce the fee requested by the first attorney. However, it is your decision. If you feel that the amount in issue or other reasons warrant you having your own attorney present, you may be represented by the attorney of your choice. If you do elect to have an attorney present, the fee for your attorney is paid by you.
What should the client do if his or her lawyer's bill seems too high?
First, review your original fee contract. Hopefully, it was a written contract, but even if not, the bill would be considered in light of the past agreement between you and your lawyer. If you had no agreement whatsoever, the law provides that the attorney is entitled to a reasonable fee taking into consideration all factors including those previously listed. If the bill still seems to be higher than your agreement or seems unreasonable, the next step is to say so. Sometimes a lot of hassle can be prevented if you and your lawyer talk things over. Ask your lawyer to explain why the bill is higher than you expected. You may find out the case was more complicated and took more time than you realized. Or the lawyer may agree that a mistake was made in the bill.
But even if it does not work out, a good faith effort by the party requesting arbitration to resolve the dispute without the necessity of outside intervention is a prerequisite to Fee Arbitration.
Who are the arbitrators?
There are normally three. Two are attorneys who must have a minimum of five years' experience practicing law. One is a non-lawyer public member. In cases with a disputed amount of $2,500 or less, one lawyer arbitrator may decide the case. They all serve voluntarily and without fee. These arbitrators, not the State Bar of Georgia, decide your case. The State Bar facilitates the Fee Arbitration process by coordination and administration of the program.