PLEASE NOTE: Publication for public comment is not, and shall not be construed as, a recommendation or approval by the Board of Trustees of the materials published

SUBJECT:

Proposed modification to State Bar Rules, Title 3, Division 4, Chapter 2, Fee Arbitration

BACKGROUND:

The rules of State Bar programs have been undergoing revision since 2005. Rules governing the State Bar’s mandatory fee arbitration program are among the last to be revised. Revised rules are organized into a single structure called the Rules of the State Bar, recast into clearer and simpler language and follow shared basic principles. The Committee on Mandatory Fee Arbitration has reviewed and provided input on the revisions. On November 15, 2012, the Regulation, Admissions and Discipline Oversight Committee authorized a forty-five day period of public comment on proposed revisions to the rules governing the mandatory fee arbitration program.

The committee also authorized the posting of a draft companion Schedule of Charges and Deadlines for informational purposes only. There are no changes in fees and deadlines appearing on the draft schedule.

DISCUSSION/PROPOSAL:

State Bar rule 1.10 (Public comment) requires public comment before State Bar rules can be adopted, amended, or repealed. The standard public comment period of forty-five days can be shortened to a minimum of thirty days or extended to a maximum of ninety days. Authorization for public comment implies no position on the proposals by the board committee or the Board of Trustees.

The primary changes made by the revisions are discussed below.

Reorganization

The revised rules place related topics together under three articles with these overarching themes: general provisions; State Bar fee arbitration proceedings and award; and enforcement. The revisions improve the organization of the current governing rules. Current fee arbitration rules are organized into ten articles covering these topics: definitions; arbitration generally; the State Bar program; initiation of fee arbitration, panels; the hearing; the award; enforcement; service; and referral for discipline. There is no overarching theme for how the rules are organized except perhaps by chronological occurrence. Some current rules have multiple subject matters. For instance, compensation of arbitrators is treated with the rules on hearings.

Procedural requirements

The revised rules transfer the operational details of procedural requirements to forms and their instructions whenever feasible. The transfer simplifies updating of operational provisions for deadlines, addresses, specific language, and the like. Compliance with the detail requirements of forms and instructions is assured by State Bar rule 1.24, which states “When a rule refers to a form, the State Bar reserves the right to reject a form that is altered in language or structure or that is not completed and submitted according to instructions.

Language of the award

Current rule 41.3 recites substantially the language that must appear on an award form. Revised rule 3.544(B) moves the required language to the award form, stating that “The award must be in writing on the State Bar Arbitration Award form …“. The State Bar Arbitration Award form will contain the required language that is stated in the current rule.

Schedule of Charges and Deadlines

The Rules of the State Bar refer to a central fee schedule rather than state charges, fees and deadlines in the rules of each program. A Schedule of Charges and Deadlines for all State Bar rules ensures that fees and deadlines can be found in a single location and provides the Board of Trustees an opportunity to review amounts periodically and adjust them in light of current economic factors. For instance, revised rule 3.534(A) states that “The party requesting arbitration must submit the filing fee set forth in the Schedule of Charges and Deadlines with the Request for Arbitration or when the State Bar accepts removal of jurisdiction in accordance with these rules.”

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENTS:

State Bar Rules, Title 3, Division 4, Chapter 2, Fee Arbitration

Schedule of Charges and Deadlines (for information only, not for comment)

SOURCE:

Committee on Mandatory Fee Arbitration

DEADLINE:

Dec. 31, 2012

DIRECT COMMENTS TO:

Susan Carlson
Mandatory Fee Arbitration
180 Howard St. 6th Floor
San Francisco, CA 94105
FAX: (415) 538-2335
Susan.carlson@calbar.ca.gov