To recap, I have not received my settlement money from my personal injury lawyers, and haven’t even heard from them about it. I’m pretty sure they have my money (I signed the settlement agreement on November 3, 2011), but where is it?
Although I filed a grievance against those lawyers with the Departmental Disciplinary Committee, that grievance does not, as the acknowledgment letter from the Committee clearly states, resolve any fee dispute I have with the lawyers. I’d have to go a step further to get my settlement.
I called a legal ethics attorney. His advice was not to retain him — the settlement isn’t big enough to justify spending money to get it — but to file for arbitration, a nearly cost-free process, and one that will force my lawyers to the table.
Yesterday I sent my Client Request for Fee Arbitration package to the Joint Committee on Fee Disputes and Conciliation. Here is what I did:
- On the front page of Sidebar, to the right under Sites of Interest, I clicked on the NYS United Court System link.
- On the main page in the right column there is an Attorneys link. I clicked on that.
- Now on the left side, there is a Client/Attorney Relationship link. I clicked on that, and then clicked on the link to the Fee Arbitration Program.
- Now I was on a site called Attorney-Client Fee Dispute Resolution Program. On the top of the page, directly under the citation 22NYCRR § 137, there is a link to Fee Dispute Brochure. I clicked on it, printed it out (3 pages) and read it.
- I then went back to the Attorney-Client Fee Dispute Resolution Program page. In the fourth paragraph, I saw a (faint) link to local programs page and clicked on it.
- Now I saw a list of Judicial Departments (that’s what the court system calls “local programs”) and links to their particular rules and forms for requesting arbitration. My Judicial Department is the First (New York County). I clicked on that.
- At the bottom of the page, there are two links to forms: Packet for Dispute Over Fees and Packet for Dispute Over Refund. I clicked on the first one.
- The form packet did not come up on my screen as I expected; it took a while before I noticed it on a tab on the top of my screen, just under the task bar. The tab read “1st jd_NY_disputefee.pdf. I opened it and printed the package.
- I found it a bit awkward to locate the form I needed, because it’s toward the back of the packet. It’s cited (at the top right, in small letters) as USC 137-4a[10/11], and is called Client Request for Fee Arbitration; it is 3 pages long. I filled it in:
- Paragraph 4b gave me pause. It asks “On what date did your attorney last perform services on your case?” Well, that’s the problem, isn’t it? But eschewing sarcasm, I wrote the last date I’d heard from the law firm, but did put in parentheses that it was a call from a paralegal, just to make it clear that it wasn’t my “attorney” performing services.
- Paragraph 5 said I should attach the Retainer Agreement. OK.
- Paragraph 6, “indicate the date, amount and purpose of each payment you made to your attorney. Attach additional sheets if necessary.” Gosh, here they are assuming that my dispute isn’t over a contingency case, that I paid my attorney money and now want some back. As we all know, this isn’t so. So I crossed out the whole section and wrote “N/A” [not applicable].
- Paragraph 7 asks “How much of your attorney’s fee is in dispute (attach a copy of your attorney’s bill, if available).” I wrote “uncertain; please see attached draft OCA Closing Statement and my…letter describing and detailing my questions.”
- Paragraph 8? “Have you received a “Notice of Client’s Right to Arbitrate
from your attorney?” Well, I haven’t received anything from my attorney. So, again eschewing sarcasm, I simply wrote “No.”
- Paragraph 9 is the meat of the application, asking me to describe briefly why my attorney isn’t entitled to amount set forth in question 7 (“uncertain”). They leave a nice quarter-page space and I filled it. (You might want to do a draft of this before inscribing it in ink.)
- Question 10 caused me to think for a day or so. Because I’d read the instructions carefully and knew the following (which I copied from the packet):
The FDRP cannot address claims of lawyer malpractice.
If you believe that your attorney committed
malpractice in your case, you should not
utilize the FDRP because it is possible that an
arbitration decision against you with regard to
the fee dispute could adversely affect your ability
to pursue malpractice in court at a later date.
I have reason to suspect some sort of malpractice in my case but am not certain of it. If I ask for mediation, I would be free to retain another lawyer and file a malpractice claim but mediation is iffy, as would be a malpractice claim. And do I want to protect my right to stretch this thing out for maybe years? Nah. I want to settle it. So in Paragraph 10, I checked off “No.”
- I then dated and signed it. At the bottom is a list of filing fees. Since the amount I dispute is not actually the total settlement in the case ($30,000) but is for a little more than $3000 in costs and expenses, my check was for $25.
- I attached my three exhibits, made a copy of the whole thing, stuck it into an envelope and mailed it.
Then I decided to make up two new files: Grievance and Arbitration. My file drawer looks so much neater.
I will report to you what happens.