Dispute Resolution Section How to use the VBA s free arbitration program for fee disputes? Must an arbitrator s rulings conform to the substantive law that would govern a court case? Arbitration in Vermont 140 th Annual Meeting September 28, 2018 Richard Cassidy Catherine Clark Mike Palmer Tad Powers Are mandatory, pre-dispute arbitration clauses in fee agreements ethical? Summary of the Revised Uniform Arbitration Act
Pop Quiz How many people have participated in an arbitration? How many learned something important about arbitration that you did not previously know? Who has ever wanted to sue a client over unpaid fees but thought better of it? Who knows how the VBA voluntary fee dispute arbitration program works? How many have wondered whether it is OK to include a mandatory arbitration clause in a fee agreement?
As a group, lawyers know too little about arbitration.
Tad Powers: What is arbitration and how does it work? Catherine Clark: Resolving Fee Disputes with the VBA Free Arbitration Program Mike Palmer: Are Mandatory Arbitration Clauses in Fee Agreements Ethical? Rich Cassidy: The Revised Uniform Arbitration Act
What is Arbitration and How Does it Work? Tad Powers
Resolving Fee Disputes with the VBA Free Arbitration Program Catherine Clark
Pre-dispute, Mandatory Arbitration Tad Powers Agreements: Ethical? Michael Palmer
The Attorney- Client Relationship
Code of Hammurabi
A lawyer needs great integrity and diligence, although perhaps no great powers of intellect or learning. Bracton
Fee Agreements & Arbitration
Ethics Boards
Louisiana Supreme Court
Waiver of the right to a jury trial; Waiver of the right to an appeal; Waiver of the right to broad discovery under the Rules of Civil Procedure or Federal Rules of Civil Procedure; Arbitration may involve substantial upfront costs compared to litigation; Explicit disclosure of the nature of claims covered by the arbitration clause, such as fee disputes or malpractice claims; The arbitration clause does not affect the client's right to file a disciplinary complaint; The client has the opportunity to speak with independent counsel before signing the fee agreement.
What the VBA Advisory Committee Said The putative client normally is unrepresented when presented with a representation agreement. In order to avoid having the agreement s terms vitiated due to an attorney s having been found to have unfairly utilized his or her favorable bargaining position, the attorney should, in writing, advise the putative client that he or she [the client] may seek independent counsel before agreeing to the arbitration terms of the employment agreement. If the prospective client declines to seek independent counsel, the attorney nevertheless must (1) fully apprise the client as to the advantages and disadvantages of binding arbitration, and (2) obtain the client s informed consent in writing to the inclusion of the binding arbitration clause in the representation agreement
What does that conversation look like?
Rules 1.4(b) & 1.8(h)
Vermont Rule 1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Comment 7 to Rule 1.4 A lawyer may not withhold information to serve the lawyer s own interest or convenience or the interests or convenience of another person.
A lawyer shall not: (1) make an agreement prospectively limiting the lawyer s liability to a client for malpractice unless the client is independently represented in making the agreement. Vermont Rule 1.8(h):
Comment 14 on Rule 1.8(h) The rule does not prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement.
The Revised Uniform Arbitration Act Richard Cassidy
Richard Cassidy Richard Cassidy is a Vermont personal injury and employment lawyer as well as a mediator and arbitrator. Rich is a member of the US District Court s Panel of Early Neutral Evaluators and various Vermont Superior Courts. A founder of Rich Cassidy Law, he has almost 40 years experience practicing law in Vermont. Rich has represented all sides in many kinds of disputes. Rich is the Immediate Past President of the Uniform Law Commission, a long-time VBA delegate to the American Bar Association, and a member of the American Bar Foundation. Active in the ULC since 1994, he served as a member of the Drafting Committee on the Revised Uniform Arbitration Act in addition to his work on the Model Punitive Damages Act, the Apportionment of Tort Responsibility Act, and the Uniform Collateral Consequences of Conviction Act.
Catherine Clark Catherine Clark is a partner in the law firm of Clark, Werner & Flynn, P.C. Catherine practices general civil litigation, with a strong emphasis on all aspects of family law. Catherine has an active family court litigation practice. Catherine has always been interested in mediation, and in 2001, pursued mediation training at Woodbury College. Recently, based on the breadth of her family court experience and mediation training, Catherine has been increasingly asked by other attorneys and unrepresented couples to act as a family law mediator. Catherine is chair of the VBA Section on Arbitration of Fee Complaints. An active member of the Chittenden County Bar Association, Catherine served In 1992 as its first female President.
Mike Palmer A Co-founder of Legal Risk Management AI, Mike Palmer has over 35 years of litigation experience, first at Jenner & Block and then as head of his own practice in Vermont. Mike has published several books and articles on litigation strategy and negotiated dispute resolution. His courtroom experience includes anti-trust, trademark, civil rights, death penalty, personal injury, legal malpractice, and bankruptcy cases. A former chair of the VBA Dispute Resolution Section and member of the Panel of Early Neutral Evaluators for the US District Court in Vermont, Mike has developed software that assists clients and their lawyers with Early Case Assessment and the low-cost resolution of disputes. Mike has taught negotiation, dispute resolution, and ethics courses at Middlebury College and the University of Vermont and has spoken frequently at international conferences on dispute resolution. Mike has also testified as an expert on the lawyer s fiduciary duty and pre-dispute mandatory arbitration agreements.
Donald Tad Powers Tad Powers is a lawyer, mediator and arbitrator and a co-founding member of the ADR firm MarksPowers LLP, based in Middlebury, Vermont. In addition to his extensive mediation practice, Tad has served as an arbitrator, Hearing Officer for the Vermont Department of Education, and Special Master appointed by the Vermont Superior Court. Tad teaches Negotiation and Mediation Advocacy at Vermont Law School and has conducted numerous CLE s and workshops on ADR for bar associations, attorney groups, and business and non-profit organizations. A former chair of the VBA Dispute Resolution Section, Tad is a member of the National Academy of Distinguished Neutrals and has been named for several years in Best Lawyers for Mediation and Arbitration.
Contact Information Rich Cassidy Rich Cassidy Law Suite D5 (Pierson House) 1233 Shelburne Road South Burlington, VT 05403 (802) 335-2794 rich@cassidylaw.com Mike Palmer Legal Risk Management AI PO Box 7 Middlebury, VT 05753 (802) 398 7737 mike@winbeforetrial.com Catherine Clark Clark, Werner & Flynn 92 College St #203 Burlington, VT 05401 (802) 865-0088 catherineclark@cwf-pc.com Donald Tad Powers Marks Powers LLP 1205 Three Mile Bridge Rd, Middlebury, Vermont 05753 (802) 388-2211 tad@powerslawvt.com