Mandatory Fee Arbitration for Attorney-mediators

• Publication year: 2017
• Author: Scott Lueders

Mandatory Fee Arbitration For Attorney-Mediators

Scott Lueders

Scott Lueders is a Certified Family Law Specialist and an ACFLS member practicing primarily in Marin County. Mr. Lueders is a fellow of the American Academy of Matrimonial Lawyers and has been named a Northern California Super Lawyer since 2006. This is his third year serving as the Chair of the Marin County Bar Association Client Relations Committee, which oversees mandatory fee arbitration proceedings in Marin County. Reach him at scott@scottlueders.com.

Earlier this year, an interesting question was posed on a family law listserve: Is an attorney who has acted as a mediator in a family law matter subject to the mandatory fee arbitration provisions of the Business and Professions Code? This article will discuss the applicable statutes and rules and analyze this issue.

The statutes governing mandatory fee arbitration ("MFA") between attorneys and clients are found in Business and Professions Code section 6200 et seq. Section 6200 requires the California State Bar's Board of Trustees to establish, maintain, and administer a system and procedure for the arbitration of disputes concerning fees, costs, or both, charged for professional services by State Bar members. That section also requires the Board of Trustees to adopt rules to allow arbitration of attorney fee disputes to proceed under arbitration programs sponsored by local California bar associations. Many county bar associations, although not all, have created and administer an MFA program. MFA under section 6200 et seq. is voluntary for a client and mandatory for an attorney if the client commences the arbitration.

The following principles of MFA are generally well-known: An attorney must serve the client with a notice of the client's right to arbitration either before a collection lawsuit is filed or along with service of the summons in the lawsuit. The client's failure to request MFA within thirty days after service of the notice waives the client's right to MFA. To invoke the right, the client must file a request for arbitration with the appropriate MFA program. Any court action or proceeding is then stayed during the arbitration process. In the arbitration proceeding, a client may not seek affirmative relief against the attorney for damages based upon alleged malpractice or professional misconduct.¹

The attorney may file an arbitration statement in response to the client's request for arbitration. The MFA program then appoints an attorney from its panel to act as the arbitrator or, in cases involving a larger amount in dispute, a panel of two attorney arbitrators, and one non-attorney arbitrator. The attorney and the client can request binding or non-binding arbitration. Both must request binding...