Fee Dispute Policies and Procedures
The primary duty of the Fee Dispute Resolution Committee [“the Committee”] shall be to arbitrate or otherwise attempt to reconcile disputes between attorneys in the Greater Chattanooga Area and/or between such attorneys and their clients [individually, a “Party”, and, collectively,“the Parties”] regarding the justification for and reasonable of fees charged or claimed [each a “Dispute” and, together, the “Disputes”]. The Committee shall be comprised of current members of the Chattanooga Bar Association [hereinafter, along with its Board of Governors, Executive Director, and any other employees or agents whatsoever, “the Association”] who are in good standing with the Association and with the State of Tennessee Supreme Court’s Board of Professional Responsibility. The Committee shall conduct its work in accordance with these Policies and Title 29, Chapter 5 of the Tennessee Code (T.C.A. §§ 20-5-101– 29-5-320 and all updates thereto). In the event of a conflict between these Policies and the Code, the provisions of the Code shall be controlling.
1. JURISDICTION. The Association and the Committee shall have sole discretion as to whether a matter should be referred to the Committee as a Dispute within the meaning of these Policies; provided, however, that the Committee shall consider only such Disputes as are referred to it by the Association. The Association will not entertain and will not refer any Dispute to the Committee unless one of the Parties has filed a written, signed complaint, preferably on a form developed and maintained by the Association. Likewise, the Committee shall not consider any Dispute between the Parties unless and until all Parties have consented to the Committee’s consideration of the same. Such consent of the Parties to the Committee’s consideration of a Dispute may not be contracted for between them prior to any Dispute having actually arisen. The Association shall not refer to the Committee, nor shall the Committee consider and arbitrate, any matter that is more appropriately referred to the Tennessee Board of Professional Responsibility [the “BPR”], irrespective of whether or not the same may be considered a Dispute under these Policies, nor shall the Association refer disputes originating:
a. In any case where a court or agency has mandatory or discretionary power to fix fees, except upon request of that court or agency;
b. In any undecided matter pending before any court or federal or state administrative agency, provided that arbitration of said matter is not preempted by deferral to the National Labor Relations Board,
(1) except upon request of such court or federal or state administrative agency; or
(2) unless all Parties to the matter agree in writing to seek and obtain an order of the court or federal or state administrative agency where said matter is pending, placing the matter on hold or in abeyance pending the arbitration; and agree in writing that the arbitration award shall be final and binding on all Parties and that the prevailing Parties shall thereafter enroll the arbitration award in said court or before said federal or state administrative agency as a final judgment in the pending matter, for which execution may issue pursuant to law as required in order to enforce said judgment. A copy of such order of the court or federal or state administrative agency shall be submitted to the Association along with the Parties’ written consent to arbitration BEFORE the matter may proceed through the fee dispute resolution process herein described.
2. NO OFFER OF LEGAL ADVICE. It is not the purpose of the Committee to provide any advices as to legal rights or options which any Party may have in relation to any Dispute submitted to the Committee for resolution, and neither the Association nor the Committee shall render any legal advice to any Party regarding the same at any time, whether prior to, during, or subsequent to the hearing about such Party’s legal rights or options as to the Dispute.
3. COMMUNICATIONS SOLELY WITH ASSOCIATION. Upon the Association’s referral of a Dispute to the Committee, no Party may communicate with any member of the Committee, or any panel constituted pursuant to Paragraph 4 of these Policies, regarding the subject matter of such Dispute, but may only direct such communications to the Association. The failure to abide by the provisions of this Paragraph 3 shall constitute grounds for the Dispute’s dismissal by the Panel, in its sole discretion, without further adjudication of the same.
4. COMPOSITION OF THE HEARING PANEL. Upon the Association’s referral of a Dispute to the Committee and the Committee’s acceptance of jurisdiction over the same, the Association shall identify and designate three members of the Committee to serve on a panel to consider the Dispute and arbitrate the same [a “Panel”], with one member of the Panel being designated by the Executive Director of the Association to serve as the Panel Chair. The Association shall make an effort to include on the Panel at least one lawyer who practices in the area involved in the dispute. If any Panel member has a conflict of interest, or even the appearance of a conflict of interest, such Panel member shall not serve on the Panel and the Association shall designate an alternate. The Parties to the Dispute shall be notified by the Association, through the most economical means possible in the sole discretion of the Association’s Executive Director, of the final composition of the Panel; provided, however, that no Party shall have the right to object to such composition.
5. DOCUMENTATION RELATED TO DISPUTE. Upon notice as to the final composition of the Panel being provided to the Parties by the Association’s Executive Director pursuant to Paragraph 4 above, the Parties shall deliver to the Association, to the extent not previously provided, any and all documentation related to the subject matter of the Dispute in as reasonably prompt a manner as possible, it being recognized by the Parties that the Panel’s ability to fully and thoroughly review and consider such documentation shall assist the Panel in providing the Parties with an efficient resolution of the Dispute and prevent potential prejudice to any other Party to the same. To the extent a Party does not provide the Association with such documentation as it deems pertinent to a full adjudication of the dispute within as reasonably prompt a manner as possible, as so determined by the Panel in its sole discretion, the Panel may refuse to consider such documentation in the course of adjudicating the Dispute.
6. RECONCILIATION. Recognizing that Disputes to be handled by the Committee pursuant to these Policies often result from misunderstandings, the Panel may, through investigation of the subject matter of the Dispute, review of such documentation provided to it by the Parties thereto pursuant to Paragraph 5 above, and discussions with the Parties, first attempt to clarify any misunderstandings and to amicably reconcile a Dispute prior to any formal adjudication of such Dispute by the Panel. In fulfilling this approach, the Association or Committee (or their designee) may encourage the Parties to discuss their Dispute for potential resolution before submitting it for arbitration through the Committee.
7. ARBITRATION. Failing reconciliation pursuant to Paragraph 6 above, the Association shall suggest binding arbitration to the disputants pursuant to Title 29, Chapter 5 of the Tennessee Code (T.C.A. §§ 29-5-101 – 29-5-320 and all updates thereto), in conjunction with and as set forth in these Policies.
8. SCHEDULING OF HEARING. All Parties to the arbitration shall cooperate with the Association in timely scheduling the hearing. The Executive Director shall provide available dates to the Parties. Should the Parties fail to reasonably cooperate in the scheduling process, the Executive Director shall have the authority to terminate the scheduling process and to administratively close the Association’s file on the matter, giving all Parties written notice thereof which cites the failure to timely schedule the hearing as the reason for the administrative file closure. Thereafter, the Executive Director shall provide the complaining Party(ies) with contact information for the BPR. Once a date for hearing has been set, it shall not be changed without the consent and agreement of the Panel Chair.
9. NOTICE OF HEARING. At least ten (10) business days prior to the scheduled hearing, written notice of the hearing date, time and place shall be sent by the Association to all Parties at their address on record with the Association by regular and/or certified U.S. mail, return receipt requested, and/or by electronic mail with a return “read receipt.” The notice to the Respondent shall be accompanied by a complete copy of the Complaint except that the Association may invite the Respondent to visit the Association offices prior to the hearing to review any Complaint exhibits too numerous and/or costly to duplicate (the latter as determined in the opinion of the Executive Director of the Association). Alternatively, notice of the hearing and a scanned copy of the Complaint may be sent to the Parties electronically at least five (5) business days prior to the scheduled hearing.
10. HEARING PROCEDURES. All Panel members must be present at the scheduled hearing, unless both Parties consent in writing to have such hearing proceed with less than the full Panel. Absent such consent, the hearing shall be continued and rescheduled pursuant to Paragraph 8 of these Policies, notice of which shall be provided to the Parties pursuant to Paragraph 9 thereof. The hearing shall be conducted in accordance with the general principles of the Tennessee Rules of Evidence and the Tennessee Rules of Civil Procedure (the “Rules”), the same to be construed liberally, in the sole discretion of the Panel, in order to provide the Parties a full and fair opportunity to present their respective positions as to the Dispute. Waiver by the Panel of compliance with the Rules shall not be grounds for objection or appeal by any Party. The Panel Chair shall preside over the hearing. At any hearing held with regards to a Dispute, any or all Panel member may examine witnesses. The Parties may examine witnesses in person or through counsel. Hearings may be suspended and/or adjourned to a day certain to meet the ends of justice, at the sole discretion of the Panel Chair.
11. FEE DISPUTES UNDER $500. For a Panel designated pursuant to these Policies to hear a Dispute involving claims or amounts of under $500.00, such Panel has the authority to make a summary disposition of such Dispute without the Parties being present. In such event, the Association will provide, through the most economical means, all Panel members with any and all relevant paperwork concerning the Dispute. Within a specified period of time but no more than ten (10) business days from the sending of the paperwork, the Panel shall exchange among themselves their recommendations for resolution of the Dispute. Within a specified period of time but no more than ten (10) business days from the sending of the paperwork, the Panel shall exchange among themselves their recommendations for resolution of the Dispute. Following unanimous resolution among the Panel members, the Panel Chair shall prepare and forward to the Association a written award, setting forth the Panel’s determination of the Dispute [an “Award”]. The Award shall be sent to the Association within no more than ten (10) business days from the date the Panel achieved unanimous resolution of the Dispute pursuant to this section. No in-person hearing with the Parties will beheld, and the Panel will meet in person only if the Panel Chair, in its sole discretion, deems that an in-person Panel session should be held in order to achieve unanimous resolution of the Dispute. Upon receipt of the Award from the Panel, the Association will forward copies of the Award to the Parties, and/or their respective counsel as applicable, within no more than thirty (30) calendar days from the date upon which the Association initially forwarded all paperwork to the Panel for its consideration.
12. FAILURE OF A PARTY TO APPEAR. In the event a Party fails to appear at a hearing scheduled pursuant to these Policies after being given adequate and sufficient notice of the same, the Panel shall render an award by default [a “Default Award’] in favor of the appearing Party. The Association shall provide notice of the Default Award to the non-appearing Party within ten (10) business days of the scheduled hearing through the means specified under Paragraph 6 of these Policies. Thereafter, the non-appearing Party may make a Written request for a new hearing specifically setting forth the reason(s) for such non-appearing Party’s failure to appear at the scheduled hearing, provided that such request must be received by the Association within ten (10) business days from the date the Association sent such notice if such notice was sent through the U.S. Mail, or five (5) business days from the date the Association sent such notice if such notice was sent through electronic means. Failing timely receipt by the Association of such WRITTEN request for a new hearing from the non-appearing Party, the Default Award shall be final and binding on the Parties. Upon the Association’s timely receipt of a request for a new hearing from the non-Appearing Party, the Panel Chair, in its sole discretion shall determine if the non-appearing party had reasonable grounds for not appearing at the scheduled hearing; provided, however, that, where doubts exist with regards to whether the non-appearing Party had reasonable grounds for failing to appear at the scheduled hearing, the same shall be resolved in favor of such non-appearing Party. If the Panel Chair determines that the non-appearing Party did not have reasonable grounds, the Default Award shall be entered as the final Award of the Panel. If the Panel Chair determines that the non-appearing Party did have reasonable grounds for not appearing at the scheduled hearing, a new hearing shall be scheduled in accordance with Paragraph 5 of these Policies. The Panel Chair’s determination as to whether the non-appearing Party had reasonable grounds for failing to appear at the scheduled hearing shall not be subject to objection by the appearing Party.
13. PANEL ORDERS. To ensure the orderly conduct of a Dispute arbitration conducted pursuant to these Policies, the Panel Chair, upon concurrence of a majority of the Panel, shall have sole discretion to issue such orders and other directives to the Parties as are necessary to ensure not only proper administration of such arbitration, but also full compliance by the Parties with the terms and spirit of the Policies themselves. Such orders and other directives shall be served upon the Parties through the means set forth in Paragraph 6 of these Policies. Such orders and other directives shall not be subject to objection or appeal by any of the Parties, and may only be rescinded through majority vote of the Panel. Failure by a Party to comply with any such orders and other directives issued by the Panel Chair may subject such Party to sanctions, up to and including the imposition of monetary sanctions on such Party for costs incurred by the Panel and the Association in seeking such compliance, as well as the dismissal of the Dispute arbitration in which the Party is participating. The Association reserves the right to consider previous imposition of sanctions against a Party when determining whether to refer a Dispute to the Committee for further adjudication pursuant to these Policies.
14. FINDINGS. The Panel may announce its findings to the Parties at the conclusion of the hearing. Alternatively, the Panel may adjourn the hearing in order to deliberate privately outside of the presence of the Parties. Thereafter, the panel must render its findings in the form of a written Award and written Opinion prepared by the Panel Chair; circulated among, approved and signed by each Panel member; and tendered to the Association for dissemination to the Parties and/or their counsel of record as applicable. The Panel shall tender its written Award and Opinion to the Association offices within thirty (30) calendar days from the concluding date of the hearing. For just cause, the Panel Chair, in its sole discretion, may extend this thirty (30)calendar day period, with written notice (of such extension being given to the parties pursuant to the means authorized under Paragraph 6 of these Policies. Said Award must be determined by majority vote of the Panel.
15. ENFORCEMENT OF THE AWARD.
a. The consent of the Parties to their Dispute being resolved through binding arbitration by the Committee pursuant to these Policies shall be considered a binding agreement under the laws of the State of Tennessee. Any award rendered by a Panel may be enforcedby any court of competent jurisdiction, provided that the Party applying for and obtaining enforcement of the Award shall be entitled to his or her reasonable attorney fees and costs incurred for obtaining enforcement of the same. Until such a court action is filed, however, the Panel retains jurisdiction for enforcing the Award, including but not limited to the action described in subparagraph (c) below.
b. If the Award shall determine that the attorney who consented to binding arbitration is not entitled to any portion of the disputed fee, service of a copy of such award on said attorney(s) shall:
(1) Terminate all claims and/or interests of the attorney against the participating client(s) with respect to the subject matter of the arbitration; and
(2) Terminate all right of such attorney to retain possession of any original documents, records or other properties of such client(s) pertaining to the subject matter of the arbitration then held under claim of attorney’s lien or for other reasons.
c. If either Party is unable to promptly pay in full the amount of any Award rendered, application may be made to the Panel for a determination of means deemed adequate to secure full satisfaction of an Award within four (4) months from the date such Award was rendered, such determination to be made by the Panel in its sole discretion. No Party shall have any right to object to any determination made by the Panel with regards to this Paragraph 12(c). Upon a Party’s full compliance with the Panel’s determination of means approved pursuant to this Paragraph, such compliance shall entitle the client to the relief specified in the foregoing paragraph.
16. REVIEW/APPEAL OF AWARD. There shall be no review and/or appeal of any Award rendered pursuant to these Policies except in the manner provided in Title 29, Chapter 5 of the Tennessee Code. Should any disputing Party opt to submit any Award hereunder to a court of competent jurisdiction for judgment enrollment and enforcement, the prevailing Party shall be entitled to recover attorney’s fees and court costs for doing so, in addition to any other award of that court.
17. FORMS. The Association may from time to time develop, maintain and update various forms to support and streamline the dispute resolution process. Such forms may include, but not be limited to, the Complaint, the Agreement to Arbitrate, the Notice of Hearing, and the Arbitrator’s Conflict of Interest Disclosure Form. The Association may, at the discretion of the Executive Director, feature these forms along with the current version of these Policies on the public side of the Association website or through other forms of media available to the public.
18. CONFIDENTIALITY. With the exception of the Award itself, all records, documents, correspondence between the Parties, the Association, the Committee, and members of the Panel, files, and recorded notes of the hearing, if any, pertaining to a Dispute, shall not be opened to the public or any person not involved in the Dispute, except as may be ordered by a court of competent jurisdiction; or as may be required by the Tennessee Rules of Professional Conduct of the Supreme Court of Tennessee (TSC Rule 8) to report to the Board of Professional Responsibility in respect to conduct of ay attorney. The Award shall be separate from The Opinion, except as necessary to carry outenforcement of Award.
19. IMMUNITY FROM LEGAL PROCESS. No Party to a Dispute shall seek to compel the production of any Association, Committee, or Panel testimony, files, records, or notes relating to the subject matter of the Dispute or any proceeding pertaining thereto. The proceedings relating to the dispute shall be absolutely confidential. The Association, the Committee, and the members of the Panel shall be immune from legal process to compel production, or testimony, through subpoena, discovery request, or other legal process, of any testimony, files, records, or notes relating to the subject matter of the Dispute. In the event any Party to a Dispute attempts to compel the production or testimony of any person, document, or thing described in this Paragraph 17, the Association shall have standing to object to the same, and the Party issuing such legal process shall be liable to the Association for any and all reasonable attorneys’ fees and costs incurred as a result thereof. A Party’s failure to abide by the terms of this Paragraph 17 may result in the Association’s refusal to refer to the Committee as a Dispute any future matter submitted to it by such Party for resolution pursuant to these Policies.
20. PROGRAM COSTS. To the degree feasible, and to the extent the program delineated under these Policies is not abused by any Party, as determined by the Association and the Committee, in their sole discretion, the Association will offer and continue to offer this fee dispute resolution program without cost or charge to the public, Association member attorneys, and any non-Association attorneys practicing in the Greater Chattanooga Area. Subject to Committee review and approval by the Association Board of Governors, the Association may implement a nominal fee schedule to cover its costs of administering the program.
By execution below, the Secretary of the Chattanooga Bar Association Board of Governors certifies that this document, as amended this date, has been approved by proper resolution of said Board at a regularly scheduled meeting thereof.
SECRETARY, CHATTANOOGA BAR ASSOCIATION
BOARD OF GOVERNORS