6200. (a) The board of governors shall, by rule, establish,
maintain, and administer a system and procedure for the arbitration,
and may establish, maintain, and administer a system and procedure
for mediation of disputes concerning fees, costs, or both, charged
for professional services by members of the State Bar or by members
of the bar of other jurisdictions. The rules may include provision
for a filing fee in the amount as the board may, from time to time,
determine.
(b) This article shall not apply to any of the following:
(1) Disputes where a member of the State Bar of California is also
admitted to practice in another jurisdiction or where an attorney is
only admitted to practice in another jurisdiction, and he or she
maintains no office in the State of California, and no material
portion of the services were rendered in the State of California.
(2) Claims for affirmative relief against the attorney for damages
or otherwise based upon alleged malpractice or professional
misconduct, except as provided in subdivision (a) of Section 6203.
(3) Disputes where the fee or cost to be paid by the client or on
his or her behalf has been determined pursuant to statute or court
order.
(c) Unless the client has agreed in writing to arbitration under
this article of all disputes concerning fees, costs, or both,
arbitration under this article shall be voluntary for a client and
shall be mandatory for an attorney if commenced by a client.
Mediation under this article shall be voluntary for an attorney and a
client.
(d) The board of governors shall adopt rules to allow arbitration
and mediation of attorney fee and cost disputes under this article to
proceed under arbitration and mediation systems sponsored by local
bar associations in this state. Rules of procedure promulgated by
local bar associations are subject to review by the board or a
committee designated by the board to ensure that they provide for a
fair, impartial, and speedy hearing and award.
(e) In adopting or reviewing rules of arbitration under this
section, the board shall provide that the panel shall include one
attorney member whose area of practice is either, at the option of
the client, civil law, if the attorney's representation involved
civil law, or criminal law, if the attorney's representation involved
criminal law, as follows:
(1) If the panel is composed of three members the panel shall
include one attorney member whose area of practice is either, at the
option of the client, civil or criminal law, and shall include one
lay member.
(2) If the panel is composed of one member, that member shall be
an attorney whose area of practice is either, at the option of the
client, civil or criminal law.
(f) In any arbitration or mediation conducted pursuant to this
article by the State Bar or by a local bar association, pursuant to
rules of procedure approved by the board of governors, an arbitrator
or mediator, as well as the arbitrating association and its
directors, officers, and employees, shall have the same immunity
which attaches in judicial proceedings.
(g) In the conduct of arbitrations under this article the
arbitrator or arbitrators may do all of the following:
(1) Take and hear evidence pertaining to the proceeding.
(2) Administer oaths and affirmations.
(3) Issue subpoenas for the attendance of witnesses and the
production of books, papers, and documents pertaining to the
proceeding.
(h) Participation in mediation is a voluntary consensual process,
based on direct negotiations between the attorney and his or her
client, and is an extension of the negotiated settlement process. All
discussions and offers of settlement are confidential and may not be
disclosed in any subsequent arbitration or other proceedings.
6201. (a) The rules adopted by the board of governors shall provide
that an attorney shall forward a written notice to the client prior
to or at the time of service of summons or claim in an action against
the client, or prior to or at the commencement of any other
proceeding against the client under a contract between attorney and
client which provides for an alternative to arbitration under this
article, for recovery of fees, costs, or both. The written notice
shall be in the form that the board of governors prescribes, and
shall include a statement of the client's right to arbitration under
this article. Failure to give this notice shall be a ground for the
dismissal of the action or other proceeding. The notice shall not be
required, however, prior to initiating mediation of the dispute.
The rules adopted by the board of governors shall provide that the
client's failure to request arbitration within 30 days after receipt
of notice from the attorney shall be deemed a waiver of the client's
right to arbitration under the provisions of this article.
(b) If an attorney, or the attorney's assignee, commences an
action in any court or any other proceeding and the client is
entitled to maintain arbitration under this article, and the dispute
is not one to which subdivision (b) of Section 6200 applies, the
client may stay the action or other proceeding by serving and filing
a request for arbitration in accordance with the rules established by
the board of governors pursuant to subdivision (a) of Section 6200.
The request for arbitration shall be served and filed prior to the
filing of an answer in the action or equivalent response in the other
proceeding; failure to so request arbitration prior to the filing of
an answer or equivalent response shall be deemed a waiver of the
client's right to arbitration under the provisions of this article if
notice of the client's right to arbitration was given pursuant to
subdivision (a).
(c) Upon filing and service of the request for arbitration, the
action or other proceeding shall be automatically stayed until the
award of the arbitrators is issued or the arbitration is otherwise
terminated. The stay may be vacated in whole or in part, after a
hearing duly noticed by any party or the court, if and to the extent
the court finds that the matter is not appropriate for arbitration
under the provisions of this article. The action or other proceeding
may thereafter proceed subject to the provisions of Section 6204.
(d) A client's right to request or maintain arbitration under the
provisions of this article is waived by the client commencing an
action or filing any pleading seeking either of the following:
(1) Judicial resolution of a fee dispute to which this article
applies.
(2) Affirmative relief against the attorney for damages or
otherwise based upon alleged malpractice or professional misconduct.
(e) If the client waives the right to arbitration under this
article, the parties may stipulate to set aside the waiver and to
proceed with arbitration.
6202. The provisions of Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code shall not prohibit the
disclosure of any relevant communication, nor shall the provisions of
Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of
the Code of Civil Procedure be construed to prohibit the disclosure
of any relevant work product of the attorney in connection with: (a)
an arbitration hearing or mediation pursuant to this article; (b) a
trial after arbitration; or (c) judicial confirmation, correction, or
vacation of an arbitration award. In no event shall such disclosure
be deemed a waiver of the confidential character of such matters for
any other purpose.
6203. (a) The award shall be in writing and signed by the
arbitrators concurring therein. It shall include a determination of
all the questions submitted to the arbitrators, the decision of which
is necessary in order to determine the controversy. The award shall
not include any award to either party for costs or attorney's fees
incurred in preparation for or in the course of the fee arbitration
proceeding, notwithstanding any contract between the parties
providing for such an award or costs or attorney's fees. However, the
filing fee paid may be allocated between the parties by the
arbitrators. This section shall not preclude an award of costs or
attorney's fees to either party by a court pursuant to subdivision
(c) of this section or of subdivision (d) of Section 6204. The State
Bar, or the local bar association delegated by the State Bar to
conduct the arbitration, shall deliver to each of the parties with
the award, an original declaration of service of the award.
Evidence relating to claims of malpractice and professional
misconduct, shall be admissible only to the extent that those claims
bear upon the fees, costs, or both, to which the attorney is
entitled. The arbitrators shall not award affirmative relief, in the
form of damages or offset or otherwise, for injuries underlying the
claim. Nothing in this section shall be construed to prevent the
arbitrators from awarding the client a refund of unearned fees,
costs, or both previously paid to the attorney.
(b) Even if the parties to the arbitration have not agreed in
writing to be bound, the arbitration award shall become binding upon
the passage of 30 days after service of notice of the award, unless a
party has, within the 30 days, sought a trial after arbitration
pursuant to Section 6204. If an action has previously been filed in
any court, any petition to confirm, correct, or vacate the award
shall be to the court in which the action is pending, and may be
served by mail on any party who has appeared, as provided in Chapter
4 (commencing with Section 1003) of Title 14 of Part 2 of the Code of
Civil Procedure; otherwise it shall be in the same manner as
provided in Chapter 4 (commencing with Section 1285) of Title 9 of
Part 3 of the Code of Civil Procedure. If no action is pending in any
court, the award may be confirmed, corrected, or vacated by petition
to the court having jurisdiction over the amount of the arbitration
award, but otherwise in the same manner as provided in Chapter 4
(commencing with Section 1285) of Title 9 of Part 3 of the Code of
Civil Procedure.
(c) Neither party to the arbitration may recover costs or attorney'
s fees incurred in preparation for or in the course of the fee
arbitration proceeding with the exception of the filing fee paid
pursuant to subdivision (a) of this section. However, a court
confirming, correcting, or vacating an award under this section may
award to the prevailing party reasonable fees and costs incurred in
obtaining confirmation, correction, or vacation of the award
including, if applicable, fees and costs on appeal. The party
obtaining judgment confirming, correcting, or vacating the award
shall be the prevailing party except that, without regard to
consideration of who the prevailing party may be, if a party did not
appear at the arbitration hearing in the manner provided by the rules
adopted by the board of governors, that party shall not be entitled
to attorney's fees or costs upon confirmation, correction, or
vacation of the award.
(d) (1) In any matter arbitrated under this article in which the
award is binding or has become binding by operation of law or has
become a judgment either after confirmation under subdivision (c) or
after a trial after arbitration under Section 6204, or in any matter
mediated under this article, if: (A) the award, judgment, or
agreement reached after mediation includes a refund of fees or costs,
or both, to the client and (B) the attorney has not complied with
that award, judgment, or agreement the State Bar shall enforce the
award, judgment, or agreement by placing the attorney on involuntary
inactive status until the refund has been paid.
(2) The State Bar shall provide for an administrative procedure to
determine whether an award, judgment, or agreement should be
enforced pursuant to this subdivision. An award, judgment, or
agreement shall be so enforced if:
(A) The State Bar shows that the attorney has failed to comply
with a binding fee arbitration award, judgment, or agreement rendered
pursuant to this article.
(B) The attorney has not proposed a payment plan acceptable to the
client or the State Bar.
However, the award, judgment, or agreement shall not be so
enforced if the attorney has demonstrated that he or she (i) is not
personally responsible for making or ensuring payment of the refund,
or (ii) is unable to pay the refund.
(3) An attorney who has failed to comply with a binding award,
judgment, or agreement shall pay administrative penalties or
reasonable costs, or both, as directed by the State Bar. Penalties
imposed shall not exceed 20 percent of the amount to be refunded to
the client or one thousand dollars ($1,000), whichever is greater.
Any penalties or costs, or both, that are not paid shall be added to
the membership fee of the attorney for the next calendar year.
(4) The board shall terminate the inactive enrollment upon proof
that the attorney has complied with the award, judgment, or agreement
and upon payment of any costs or penalties, or both, assessed as a
result of the attorney's failure to comply.
(5) A request for enforcement under this subdivision shall be made
within four years from the date (A) the arbitration award was
mailed, (B) the judgment was entered, or (C) the date the agreement
was signed. In an arbitrated matter, however, in no event shall a
request be made prior to 100 days from the date of the service of a
signed copy of the award. In cases where the award is appealed, a
request shall not be made prior to 100 days from the date the award
has become final as set forth in this section.
6204. (a) The parties may agree in writing to be bound by the award
of arbitrators appointed pursuant to this article at any time after
the dispute over fees, costs, or both, has arisen. In the absence of
such an agreement, either party shall be entitled to a trial after
arbitration if sought within 30 days, pursuant to subdivisions (b)
and (c), except that if either party willfully fails to appear at the
arbitration hearing in the manner provided by the rules adopted by
the board of governors, that party shall not be entitled to a trial
after arbitration. The determination of willfulness shall be made by
the court. The party who failed to appear at the arbitration shall
have the burden of proving that the failure to appear was not
willful. In making its determination, the court may consider any
findings made by the arbitrators on the subject of a party's failure
to appear.
(b) If there is an action pending, the trial after arbitration
shall be initiated by filing a rejection of arbitration award and
request for trial after arbitration in that action within 30 days
after service of notice of the award. If the rejection of arbitration
award has been filed by the plaintiff in the pending action, all
defendants shall file a responsive pleading within 30 days following
service upon the defendant of the rejection of arbitration award and
request for trial after arbitration. If the rejection of arbitration
award has been filed by the defendant in the pending action, all
defendants shall file a responsive pleading within 30 days after the
filing of the rejection of arbitration award and request for trial
after arbitration. Service may be made by mail on any party who has
appeared; otherwise service shall be made in the manner provided in
Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of
the Code of Civil Procedure. Upon service and filing of the rejection
of arbitration award, any stay entered pursuant to Section 6201
shall be vacated, without the necessity of a court order.
(c) If no action is pending, the trial after arbitration shall be
initiated by the commencement of an action in the court having
jurisdiction over the amount of money in controversy within 30 days
after service of notice of the award. After the filing of such an
action, the action shall proceed in accordance with the provisions of
Part 2 (commencing with Section 307) of the Code of Civil Procedure,
concerning civil actions generally.
(d) The party seeking a trial after arbitration shall be the
prevailing party if that party obtains a judgment more favorable than
that provided by the arbitration award, and in all other cases the
other party shall be the prevailing party. The prevailing party may,
in the discretion of the court, be entitled to an allowance for
reasonable attorney's fees and costs incurred in the trial after
arbitration, which allowance shall be fixed by the court. In fixing
the attorney's fees, the court shall consider the award and
determinations of the arbitrators, in addition to any other relevant
evidence.
(e) Except as provided in this section, the award and
determinations of the arbitrators shall not be admissible nor operate
as collateral estoppel or res judicata in any action or proceeding.
6204.5. (a) The State Bar shall provide by rule for an appropriate
procedure to disqualify an arbitrator or mediator upon request of
either party.
(b) The State Bar, or the local bar association delegated by the
State Bar to conduct the arbitration, shall deliver a notice to the
parties advising them of their rights to judicial relief subsequent
to the arbitration proceeding.
6206. The time for filing a civil action seeking judicial
resolution of a dispute subject to arbitration under this article
shall be tolled from the time an arbitration is initiated in
accordance with the rules adopted by the board of governors until (a)
30 days after receipt of notice of the award of the arbitrators, or
(b) receipt of notice that the arbitration is otherwise terminated,
whichever comes first. Arbitration may not be commenced under this
article if a civil action requesting the same relief would be barred
by any provision of Title 2 (commencing with Section 312) of Part 2
of the Code of Civil Procedure; provided that this limitation shall
not apply to a request for arbitration by a client, pursuant to the
provisions of subdivision (b) of Section 6201, following the filing
of a civil action by the attorney.
6200. (a) The board of governors shall, by rule, establish,
maintain, and administer a system and procedure for the arbitration,
and may establish, maintain, and administer a system and procedure
for mediation of disputes concerning fees, costs, or both, charged
for professional services by members of the State Bar or by members
of the bar of other jurisdictions. The rules may include provision
for a filing fee in the amount as the board may, from time to time,
determine.
(b) This article shall not apply to any of the following:
(1) Disputes where a member of the State Bar of California is also
admitted to practice in another jurisdiction or where an attorney is
only admitted to practice in another jurisdiction, and he or she
maintains no office in the State of California, and no material
portion of the services were rendered in the State of California.
(2) Claims for affirmative relief against the attorney for damages
or otherwise based upon alleged malpractice or professional
misconduct, except as provided in subdivision (a) of Section 6203.
(3) Disputes where the fee or cost to be paid by the client or on
his or her behalf has been determined pursuant to statute or court
order.
(c) Unless the client has agreed in writing to arbitration under
this article of all disputes concerning fees, costs, or both,
arbitration under this article shall be voluntary for a client and
shall be mandatory for an attorney if commenced by a client.
Mediation under this article shall be voluntary for an attorney and a
client.
(d) The board of governors shall adopt rules to allow arbitration
and mediation of attorney fee and cost disputes under this article to
proceed under arbitration and mediation systems sponsored by local
bar associations in this state. Rules of procedure promulgated by
local bar associations are subject to review by the board or a
committee designated by the board to ensure that they provide for a
fair, impartial, and speedy hearing and award.
(e) In adopting or reviewing rules of arbitration under this
section, the board shall provide that the panel shall include one
attorney member whose area of practice is either, at the option of
the client, civil law, if the attorney's representation involved
civil law, or criminal law, if the attorney's representation involved
criminal law, as follows:
(1) If the panel is composed of three members the panel shall
include one attorney member whose area of practice is either, at the
option of the client, civil or criminal law, and shall include one
lay member.
(2) If the panel is composed of one member, that member shall be
an attorney whose area of practice is either, at the option of the
client, civil or criminal law.
(f) In any arbitration or mediation conducted pursuant to this
article by the State Bar or by a local bar association, pursuant to
rules of procedure approved by the board of governors, an arbitrator
or mediator, as well as the arbitrating association and its
directors, officers, and employees, shall have the same immunity
which attaches in judicial proceedings.
(g) In the conduct of arbitrations under this article the
arbitrator or arbitrators may do all of the following:
(1) Take and hear evidence pertaining to the proceeding.
(2) Administer oaths and affirmations.
(3) Issue subpoenas for the attendance of witnesses and the
production of books, papers, and documents pertaining to the
proceeding.
(h) Participation in mediation is a voluntary consensual process,
based on direct negotiations between the attorney and his or her
client, and is an extension of the negotiated settlement process. All
discussions and offers of settlement are confidential and may not be
disclosed in any subsequent arbitration or other proceedings.
6201. (a) The rules adopted by the board of governors shall provide
that an attorney shall forward a written notice to the client prior
to or at the time of service of summons or claim in an action against
the client, or prior to or at the commencement of any other
proceeding against the client under a contract between attorney and
client which provides for an alternative to arbitration under this
article, for recovery of fees, costs, or both. The written notice
shall be in the form that the board of governors prescribes, and
shall include a statement of the client's right to arbitration under
this article. Failure to give this notice shall be a ground for the
dismissal of the action or other proceeding. The notice shall not be
required, however, prior to initiating mediation of the dispute.
The rules adopted by the board of governors shall provide that the
client's failure to request arbitration within 30 days after receipt
of notice from the attorney shall be deemed a waiver of the client's
right to arbitration under the provisions of this article.
(b) If an attorney, or the attorney's assignee, commences an
action in any court or any other proceeding and the client is
entitled to maintain arbitration under this article, and the dispute
is not one to which subdivision (b) of Section 6200 applies, the
client may stay the action or other proceeding by serving and filing
a request for arbitration in accordance with the rules established by
the board of governors pursuant to subdivision (a) of Section 6200.
The request for arbitration shall be served and filed prior to the
filing of an answer in the action or equivalent response in the other
proceeding; failure to so request arbitration prior to the filing of
an answer or equivalent response shall be deemed a waiver of the
client's right to arbitration under the provisions of this article if
notice of the client's right to arbitration was given pursuant to
subdivision (a).
(c) Upon filing and service of the request for arbitration, the
action or other proceeding shall be automatically stayed until the
award of the arbitrators is issued or the arbitration is otherwise
terminated. The stay may be vacated in whole or in part, after a
hearing duly noticed by any party or the court, if and to the extent
the court finds that the matter is not appropriate for arbitration
under the provisions of this article. The action or other proceeding
may thereafter proceed subject to the provisions of Section 6204.
(d) A client's right to request or maintain arbitration under the
provisions of this article is waived by the client commencing an
action or filing any pleading seeking either of the following:
(1) Judicial resolution of a fee dispute to which this article
applies.
(2) Affirmative relief against the attorney for damages or
otherwise based upon alleged malpractice or professional misconduct.
(e) If the client waives the right to arbitration under this
article, the parties may stipulate to set aside the waiver and to
proceed with arbitration.
6202. The provisions of Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code shall not prohibit the
disclosure of any relevant communication, nor shall the provisions of
Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of
the Code of Civil Procedure be construed to prohibit the disclosure
of any relevant work product of the attorney in connection with: (a)
an arbitration hearing or mediation pursuant to this article; (b) a
trial after arbitration; or (c) judicial confirmation, correction, or
vacation of an arbitration award. In no event shall such disclosure
be deemed a waiver of the confidential character of such matters for
any other purpose.
6203. (a) The award shall be in writing and signed by the
arbitrators concurring therein. It shall include a determination of
all the questions submitted to the arbitrators, the decision of which
is necessary in order to determine the controversy. The award shall
not include any award to either party for costs or attorney's fees
incurred in preparation for or in the course of the fee arbitration
proceeding, notwithstanding any contract between the parties
providing for such an award or costs or attorney's fees. However, the
filing fee paid may be allocated between the parties by the
arbitrators. This section shall not preclude an award of costs or
attorney's fees to either party by a court pursuant to subdivision
(c) of this section or of subdivision (d) of Section 6204. The State
Bar, or the local bar association delegated by the State Bar to
conduct the arbitration, shall deliver to each of the parties with
the award, an original declaration of service of the award.
Evidence relating to claims of malpractice and professional
misconduct, shall be admissible only to the extent that those claims
bear upon the fees, costs, or both, to which the attorney is
entitled. The arbitrators shall not award affirmative relief, in the
form of damages or offset or otherwise, for injuries underlying the
claim. Nothing in this section shall be construed to prevent the
arbitrators from awarding the client a refund of unearned fees,
costs, or both previously paid to the attorney.
(b) Even if the parties to the arbitration have not agreed in
writing to be bound, the arbitration award shall become binding upon
the passage of 30 days after service of notice of the award, unless a
party has, within the 30 days, sought a trial after arbitration
pursuant to Section 6204. If an action has previously been filed in
any court, any petition to confirm, correct, or vacate the award
shall be to the court in which the action is pending, and may be
served by mail on any party who has appeared, as provided in Chapter
4 (commencing with Section 1003) of Title 14 of Part 2 of the Code of
Civil Procedure; otherwise it shall be in the same manner as
provided in Chapter 4 (commencing with Section 1285) of Title 9 of
Part 3 of the Code of Civil Procedure. If no action is pending in any
court, the award may be confirmed, corrected, or vacated by petition
to the court having jurisdiction over the amount of the arbitration
award, but otherwise in the same manner as provided in Chapter 4
(commencing with Section 1285) of Title 9 of Part 3 of the Code of
Civil Procedure.
(c) Neither party to the arbitration may recover costs or attorney'
s fees incurred in preparation for or in the course of the fee
arbitration proceeding with the exception of the filing fee paid
pursuant to subdivision (a) of this section. However, a court
confirming, correcting, or vacating an award under this section may
award to the prevailing party reasonable fees and costs incurred in
obtaining confirmation, correction, or vacation of the award
including, if applicable, fees and costs on appeal. The party
obtaining judgment confirming, correcting, or vacating the award
shall be the prevailing party except that, without regard to
consideration of who the prevailing party may be, if a party did not
appear at the arbitration hearing in the manner provided by the rules
adopted by the board of governors, that party shall not be entitled
to attorney's fees or costs upon confirmation, correction, or
vacation of the award.
(d) (1) In any matter arbitrated under this article in which the
award is binding or has become binding by operation of law or has
become a judgment either after confirmation under subdivision (c) or
after a trial after arbitration under Section 6204, or in any matter
mediated under this article, if: (A) the award, judgment, or
agreement reached after mediation includes a refund of fees or costs,
or both, to the client and (B) the attorney has not complied with
that award, judgment, or agreement the State Bar shall enforce the
award, judgment, or agreement by placing the attorney on involuntary
inactive status until the refund has been paid.
(2) The State Bar shall provide for an administrative procedure to
determine whether an award, judgment, or agreement should be
enforced pursuant to this subdivision. An award, judgment, or
agreement shall be so enforced if:
(A) The State Bar shows that the attorney has failed to comply
with a binding fee arbitration award, judgment, or agreement rendered
pursuant to this article.
(B) The attorney has not proposed a payment plan acceptable to the
client or the State Bar.
However, the award, judgment, or agreement shall not be so
enforced if the attorney has demonstrated that he or she (i) is not
personally responsible for making or ensuring payment of the refund,
or (ii) is unable to pay the refund.
(3) An attorney who has failed to comply with a binding award,
judgment, or agreement shall pay administrative penalties or
reasonable costs, or both, as directed by the State Bar. Penalties
imposed shall not exceed 20 percent of the amount to be refunded to
the client or one thousand dollars ($1,000), whichever is greater.
Any penalties or costs, or both, that are not paid shall be added to
the membership fee of the attorney for the next calendar year.
(4) The board shall terminate the inactive enrollment upon proof
that the attorney has complied with the award, judgment, or agreement
and upon payment of any costs or penalties, or both, assessed as a
result of the attorney's failure to comply.
(5) A request for enforcement under this subdivision shall be made
within four years from the date (A) the arbitration award was
mailed, (B) the judgment was entered, or (C) the date the agreement
was signed. In an arbitrated matter, however, in no event shall a
request be made prior to 100 days from the date of the service of a
signed copy of the award. In cases where the award is appealed, a
request shall not be made prior to 100 days from the date the award
has become final as set forth in this section.
6204. (a) The parties may agree in writing to be bound by the award
of arbitrators appointed pursuant to this article at any time after
the dispute over fees, costs, or both, has arisen. In the absence of
such an agreement, either party shall be entitled to a trial after
arbitration if sought within 30 days, pursuant to subdivisions (b)
and (c), except that if either party willfully fails to appear at the
arbitration hearing in the manner provided by the rules adopted by
the board of governors, that party shall not be entitled to a trial
after arbitration. The determination of willfulness shall be made by
the court. The party who failed to appear at the arbitration shall
have the burden of proving that the failure to appear was not
willful. In making its determination, the court may consider any
findings made by the arbitrators on the subject of a party's failure
to appear.
(b) If there is an action pending, the trial after arbitration
shall be initiated by filing a rejection of arbitration award and
request for trial after arbitration in that action within 30 days
after service of notice of the award. If the rejection of arbitration
award has been filed by the plaintiff in the pending action, all
defendants shall file a responsive pleading within 30 days following
service upon the defendant of the rejection of arbitration award and
request for trial after arbitration. If the rejection of arbitration
award has been filed by the defendant in the pending action, all
defendants shall file a responsive pleading within 30 days after the
filing of the rejection of arbitration award and request for trial
after arbitration. Service may be made by mail on any party who has
appeared; otherwise service shall be made in the manner provided in
Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of
the Code of Civil Procedure. Upon service and filing of the rejection
of arbitration award, any stay entered pursuant to Section 6201
shall be vacated, without the necessity of a court order.
(c) If no action is pending, the trial after arbitration shall be
initiated by the commencement of an action in the court having
jurisdiction over the amount of money in controversy within 30 days
after service of notice of the award. After the filing of such an
action, the action shall proceed in accordance with the provisions of
Part 2 (commencing with Section 307) of the Code of Civil Procedure,
concerning civil actions generally.
(d) The party seeking a trial after arbitration shall be the
prevailing party if that party obtains a judgment more favorable than
that provided by the arbitration award, and in all other cases the
other party shall be the prevailing party. The prevailing party may,
in the discretion of the court, be entitled to an allowance for
reasonable attorney's fees and costs incurred in the trial after
arbitration, which allowance shall be fixed by the court. In fixing
the attorney's fees, the court shall consider the award and
determinations of the arbitrators, in addition to any other relevant
evidence.
(e) Except as provided in this section, the award and
determinations of the arbitrators shall not be admissible nor operate
as collateral estoppel or res judicata in any action or proceeding.
6204.5. (a) The State Bar shall provide by rule for an appropriate
procedure to disqualify an arbitrator or mediator upon request of
either party.
(b) The State Bar, or the local bar association delegated by the
State Bar to conduct the arbitration, shall deliver a notice to the
parties advising them of their rights to judicial relief subsequent
to the arbitration proceeding.
6206. The time for filing a civil action seeking judicial
resolution of a dispute subject to arbitration under this article
shall be tolled from the time an arbitration is initiated in
accordance with the rules adopted by the board of governors until (a)
30 days after receipt of notice of the award of the arbitrators, or
(b) receipt of notice that the arbitration is otherwise terminated,
whichever comes first. Arbitration may not be commenced under this
article if a civil action requesting the same relief would be barred
by any provision of Title 2 (commencing with Section 312) of Part 2
of the Code of Civil Procedure; provided that this limitation shall
not apply to a request for arbitration by a client, pursuant to the
provisions of subdivision (b) of Section 6201, following the filing
of a civil action by the attorney.
6200. (a) The board of governors shall, by rule, establish,
maintain, and administer a system and procedure for the arbitration,
and may establish, maintain, and administer a system and procedure
for mediation of disputes concerning fees, costs, or both, charged
for professional services by members of the State Bar or by members
of the bar of other jurisdictions. The rules may include provision
for a filing fee in the amount as the board may, from time to time,
determine.
(b) This article shall not apply to any of the following:
(1) Disputes where a member of the State Bar of California is also
admitted to practice in another jurisdiction or where an attorney is
only admitted to practice in another jurisdiction, and he or she
maintains no office in the State of California, and no material
portion of the services were rendered in the State of California.
(2) Claims for affirmative relief against the attorney for damages
or otherwise based upon alleged malpractice or professional
misconduct, except as provided in subdivision (a) of Section 6203.
(3) Disputes where the fee or cost to be paid by the client or on
his or her behalf has been determined pursuant to statute or court
order.
(c) Unless the client has agreed in writing to arbitration under
this article of all disputes concerning fees, costs, or both,
arbitration under this article shall be voluntary for a client and
shall be mandatory for an attorney if commenced by a client.
Mediation under this article shall be voluntary for an attorney and a
client.
(d) The board of governors shall adopt rules to allow arbitration
and mediation of attorney fee and cost disputes under this article to
proceed under arbitration and mediation systems sponsored by local
bar associations in this state. Rules of procedure promulgated by
local bar associations are subject to review by the board or a
committee designated by the board to ensure that they provide for a
fair, impartial, and speedy hearing and award.
(e) In adopting or reviewing rules of arbitration under this
section, the board shall provide that the panel shall include one
attorney member whose area of practice is either, at the option of
the client, civil law, if the attorney's representation involved
civil law, or criminal law, if the attorney's representation involved
criminal law, as follows:
(1) If the panel is composed of three members the panel shall
include one attorney member whose area of practice is either, at the
option of the client, civil or criminal law, and shall include one
lay member.
(2) If the panel is composed of one member, that member shall be
an attorney whose area of practice is either, at the option of the
client, civil or criminal law.
(f) In any arbitration or mediation conducted pursuant to this
article by the State Bar or by a local bar association, pursuant to
rules of procedure approved by the board of governors, an arbitrator
or mediator, as well as the arbitrating association and its
directors, officers, and employees, shall have the same immunity
which attaches in judicial proceedings.
(g) In the conduct of arbitrations under this article the
arbitrator or arbitrators may do all of the following:
(1) Take and hear evidence pertaining to the proceeding.
(2) Administer oaths and affirmations.
(3) Issue subpoenas for the attendance of witnesses and the
production of books, papers, and documents pertaining to the
proceeding.
(h) Participation in mediation is a voluntary consensual process,
based on direct negotiations between the attorney and his or her
client, and is an extension of the negotiated settlement process. All
discussions and offers of settlement are confidential and may not be
disclosed in any subsequent arbitration or other proceedings.
6201. (a) The rules adopted by the board of governors shall provide
that an attorney shall forward a written notice to the client prior
to or at the time of service of summons or claim in an action against
the client, or prior to or at the commencement of any other
proceeding against the client under a contract between attorney and
client which provides for an alternative to arbitration under this
article, for recovery of fees, costs, or both. The written notice
shall be in the form that the board of governors prescribes, and
shall include a statement of the client's right to arbitration under
this article. Failure to give this notice shall be a ground for the
dismissal of the action or other proceeding. The notice shall not be
required, however, prior to initiating mediation of the dispute.
The rules adopted by the board of governors shall provide that the
client's failure to request arbitration within 30 days after receipt
of notice from the attorney shall be deemed a waiver of the client's
right to arbitration under the provisions of this article.
(b) If an attorney, or the attorney's assignee, commences an
action in any court or any other proceeding and the client is
entitled to maintain arbitration under this article, and the dispute
is not one to which subdivision (b) of Section 6200 applies, the
client may stay the action or other proceeding by serving and filing
a request for arbitration in accordance with the rules established by
the board of governors pursuant to subdivision (a) of Section 6200.
The request for arbitration shall be served and filed prior to the
filing of an answer in the action or equivalent response in the other
proceeding; failure to so request arbitration prior to the filing of
an answer or equivalent response shall be deemed a waiver of the
client's right to arbitration under the provisions of this article if
notice of the client's right to arbitration was given pursuant to
subdivision (a).
(c) Upon filing and service of the request for arbitration, the
action or other proceeding shall be automatically stayed until the
award of the arbitrators is issued or the arbitration is otherwise
terminated. The stay may be vacated in whole or in part, after a
hearing duly noticed by any party or the court, if and to the extent
the court finds that the matter is not appropriate for arbitration
under the provisions of this article. The action or other proceeding
may thereafter proceed subject to the provisions of Section 6204.
(d) A client's right to request or maintain arbitration under the
provisions of this article is waived by the client commencing an
action or filing any pleading seeking either of the following:
(1) Judicial resolution of a fee dispute to which this article
applies.
(2) Affirmative relief against the attorney for damages or
otherwise based upon alleged malpractice or professional misconduct.
(e) If the client waives the right to arbitration under this
article, the parties may stipulate to set aside the waiver and to
proceed with arbitration.
6202. The provisions of Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code shall not prohibit the
disclosure of any relevant communication, nor shall the provisions of
Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of
the Code of Civil Procedure be construed to prohibit the disclosure
of any relevant work product of the attorney in connection with: (a)
an arbitration hearing or mediation pursuant to this article; (b) a
trial after arbitration; or (c) judicial confirmation, correction, or
vacation of an arbitration award. In no event shall such disclosure
be deemed a waiver of the confidential character of such matters for
any other purpose.
6203. (a) The award shall be in writing and signed by the
arbitrators concurring therein. It shall include a determination of
all the questions submitted to the arbitrators, the decision of which
is necessary in order to determine the controversy. The award shall
not include any award to either party for costs or attorney's fees
incurred in preparation for or in the course of the fee arbitration
proceeding, notwithstanding any contract between the parties
providing for such an award or costs or attorney's fees. However, the
filing fee paid may be allocated between the parties by the
arbitrators. This section shall not preclude an award of costs or
attorney's fees to either party by a court pursuant to subdivision
(c) of this section or of subdivision (d) of Section 6204. The State
Bar, or the local bar association delegated by the State Bar to
conduct the arbitration, shall deliver to each of the parties with
the award, an original declaration of service of the award.
Evidence relating to claims of malpractice and professional
misconduct, shall be admissible only to the extent that those claims
bear upon the fees, costs, or both, to which the attorney is
entitled. The arbitrators shall not award affirmative relief, in the
form of damages or offset or otherwise, for injuries underlying the
claim. Nothing in this section shall be construed to prevent the
arbitrators from awarding the client a refund of unearned fees,
costs, or both previously paid to the attorney.
(b) Even if the parties to the arbitration have not agreed in
writing to be bound, the arbitration award shall become binding upon
the passage of 30 days after service of notice of the award, unless a
party has, within the 30 days, sought a trial after arbitration
pursuant to Section 6204. If an action has previously been filed in
any court, any petition to confirm, correct, or vacate the award
shall be to the court in which the action is pending, and may be
served by mail on any party who has appeared, as provided in Chapter
4 (commencing with Section 1003) of Title 14 of Part 2 of the Code of
Civil Procedure; otherwise it shall be in the same manner as
provided in Chapter 4 (commencing with Section 1285) of Title 9 of
Part 3 of the Code of Civil Procedure. If no action is pending in any
court, the award may be confirmed, corrected, or vacated by petition
to the court having jurisdiction over the amount of the arbitration
award, but otherwise in the same manner as provided in Chapter 4
(commencing with Section 1285) of Title 9 of Part 3 of the Code of
Civil Procedure.
(c) Neither party to the arbitration may recover costs or attorney'
s fees incurred in preparation for or in the course of the fee
arbitration proceeding with the exception of the filing fee paid
pursuant to subdivision (a) of this section. However, a court
confirming, correcting, or vacating an award under this section may
award to the prevailing party reasonable fees and costs incurred in
obtaining confirmation, correction, or vacation of the award
including, if applicable, fees and costs on appeal. The party
obtaining judgment confirming, correcting, or vacating the award
shall be the prevailing party except that, without regard to
consideration of who the prevailing party may be, if a party did not
appear at the arbitration hearing in the manner provided by the rules
adopted by the board of governors, that party shall not be entitled
to attorney's fees or costs upon confirmation, correction, or
vacation of the award.
(d) (1) In any matter arbitrated under this article in which the
award is binding or has become binding by operation of law or has
become a judgment either after confirmation under subdivision (c) or
after a trial after arbitration under Section 6204, or in any matter
mediated under this article, if: (A) the award, judgment, or
agreement reached after mediation includes a refund of fees or costs,
or both, to the client and (B) the attorney has not complied with
that award, judgment, or agreement the State Bar shall enforce the
award, judgment, or agreement by placing the attorney on involuntary
inactive status until the refund has been paid.
(2) The State Bar shall provide for an administrative procedure to
determine whether an award, judgment, or agreement should be
enforced pursuant to this subdivision. An award, judgment, or
agreement shall be so enforced if:
(A) The State Bar shows that the attorney has failed to comply
with a binding fee arbitration award, judgment, or agreement rendered
pursuant to this article.
(B) The attorney has not proposed a payment plan acceptable to the
client or the State Bar.
However, the award, judgment, or agreement shall not be so
enforced if the attorney has demonstrated that he or she (i) is not
personally responsible for making or ensuring payment of the refund,
or (ii) is unable to pay the refund.
(3) An attorney who has failed to comply with a binding award,
judgment, or agreement shall pay administrative penalties or
reasonable costs, or both, as directed by the State Bar. Penalties
imposed shall not exceed 20 percent of the amount to be refunded to
the client or one thousand dollars ($1,000), whichever is greater.
Any penalties or costs, or both, that are not paid shall be added to
the membership fee of the attorney for the next calendar year.
(4) The board shall terminate the inactive enrollment upon proof
that the attorney has complied with the award, judgment, or agreement
and upon payment of any costs or penalties, or both, assessed as a
result of the attorney's failure to comply.
(5) A request for enforcement under this subdivision shall be made
within four years from the date (A) the arbitration award was
mailed, (B) the judgment was entered, or (C) the date the agreement
was signed. In an arbitrated matter, however, in no event shall a
request be made prior to 100 days from the date of the service of a
signed copy of the award. In cases where the award is appealed, a
request shall not be made prior to 100 days from the date the award
has become final as set forth in this section.
6204. (a) The parties may agree in writing to be bound by the award
of arbitrators appointed pursuant to this article at any time after
the dispute over fees, costs, or both, has arisen. In the absence of
such an agreement, either party shall be entitled to a trial after
arbitration if sought within 30 days, pursuant to subdivisions (b)
and (c), except that if either party willfully fails to appear at the
arbitration hearing in the manner provided by the rules adopted by
the board of governors, that party shall not be entitled to a trial
after arbitration. The determination of willfulness shall be made by
the court. The party who failed to appear at the arbitration shall
have the burden of proving that the failure to appear was not
willful. In making its determination, the court may consider any
findings made by the arbitrators on the subject of a party's failure
to appear.
(b) If there is an action pending, the trial after arbitration
shall be initiated by filing a rejection of arbitration award and
request for trial after arbitration in that action within 30 days
after service of notice of the award. If the rejection of arbitration
award has been filed by the plaintiff in the pending action, all
defendants shall file a responsive pleading within 30 days following
service upon the defendant of the rejection of arbitration award and
request for trial after arbitration. If the rejection of arbitration
award has been filed by the defendant in the pending action, all
defendants shall file a responsive pleading within 30 days after the
filing of the rejection of arbitration award and request for trial
after arbitration. Service may be made by mail on any party who has
appeared; otherwise service shall be made in the manner provided in
Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of
the Code of Civil Procedure. Upon service and filing of the rejection
of arbitration award, any stay entered pursuant to Section 6201
shall be vacated, without the necessity of a court order.
(c) If no action is pending, the trial after arbitration shall be
initiated by the commencement of an action in the court having
jurisdiction over the amount of money in controversy within 30 days
after service of notice of the award. After the filing of such an
action, the action shall proceed in accordance with the provisions of
Part 2 (commencing with Section 307) of the Code of Civil Procedure,
concerning civil actions generally.
(d) The party seeking a trial after arbitration shall be the
prevailing party if that party obtains a judgment more favorable than
that provided by the arbitration award, and in all other cases the
other party shall be the prevailing party. The prevailing party may,
in the discretion of the court, be entitled to an allowance for
reasonable attorney's fees and costs incurred in the trial after
arbitration, which allowance shall be fixed by the court. In fixing
the attorney's fees, the court shall consider the award and
determinations of the arbitrators, in addition to any other relevant
evidence.
(e) Except as provided in this section, the award and
determinations of the arbitrators shall not be admissible nor operate
as collateral estoppel or res judicata in any action or proceeding.
6204.5. (a) The State Bar shall provide by rule for an appropriate
procedure to disqualify an arbitrator or mediator upon request of
either party.
(b) The State Bar, or the local bar association delegated by the
State Bar to conduct the arbitration, shall deliver a notice to the
parties advising them of their rights to judicial relief subsequent
to the arbitration proceeding.
6206. The time for filing a civil action seeking judicial
resolution of a dispute subject to arbitration under this article
shall be tolled from the time an arbitration is initiated in
accordance with the rules adopted by the board of governors until (a)
30 days after receipt of notice of the award of the arbitrators, or
(b) receipt of notice that the arbitration is otherwise terminated,
whichever comes first. Arbitration may not be commenced under this
article if a civil action requesting the same relief would be barred
by any provision of Title 2 (commencing with Section 312) of Part 2
of the Code of Civil Procedure; provided that this limitation shall
not apply to a request for arbitration by a client, pursuant to the
provisions of subdivision (b) of Section 6201, following the filing
of a civil action by the attorney.
