Supreme Court Order 00-15
In the Matter of the Petition to
Create a Mandatory Fee Arbitration System
Amended Order 00-15
On Sept. 25, 2000, Gerald Sternberg filed a
petition seeking the adoption of Supreme Court Rules creating a fee
arbitration system for lawyer-client fee disputes that requires the
lawyer's participation in the system.
IT IS ORDERED that a public hearing on
the petition shall be held in the Supreme Court Hearing Room, 119 Martin
Luther King Jr. Blvd., Madison, Wis., on March 13, 2001, at 9:30
a.m.
IT IS FURTHER ORDERED that the court's
conference in the matter shall be held promptly following the public
hearings held that day.
IT IS FURTHER ORDERED that notice of
the hearing be given by a single publication of a copy of this order and
of the petition in the official state newspaper and in an official
publication of the State Bar of Wisconsin not more than 60 days nor less
than 30 days before the date of the hearing.
Dated at Madison, Wis., this 19th day
of Dec., 2000.
By the court:
Cornelia G. Clark, Clerk
Petition
Proposed Chapter 14 of Wisconsin Supreme Court Rules
FEE ARBITRATION
SCR 14.01. General Principles and Jurisdiction
A. Definitions. The following definitions shall apply in all fee
arbitration proceedings.
(1) "Client" means a person or entity
who directly or through an authorized representative consults, retains
or secures legal service or advice from a lawyer in the lawyer's
professional capacity.
(2) "Decision" means the determination
made by the panel in a fee arbitration proceeding.
(3) "Lawyer" means a person admitted to
the practice of law in Wisconsin, or any other person who appears,
participates or otherwise engages in the practice of law in this state,
regardless of the status of his or her license. In these rules, the term
"lawyer" includes a lawyer's assignee.
(4) "Panel" means the arbitrator(s)
assigned to hear a fee dispute and to issue a decision.
(5) "Party" means the client, lawyer,
the lawyer's assignee and any third person or entity who has been joined
by the client or lawyer in the proceeding.
(6) "Petition" means a written request
for fee arbitration in a form approved by the Fee Arbitration
Program.
(7) "Petitioner" means the party
requesting fee arbitration.
(8) "Respondent" means the party with
whom the petitioner has a fee dispute.
B. Establishment; Purpose. It is the
policy of the Supreme Court of Wisconsin to encourage the informal
resolution of fee disputes between lawyers who practice law in Wisconsin
and their clients and, in the event such informal resolution cannot be
achieved, to provide for the arbitration of such disputes. To that end,
the Supreme Court of Wisconsin hereby establishes through adoption of
these rules, a program and procedures for the arbitration of disputes
concerning any and all fees and/or costs paid, charged, or claimed for
professional services by lawyers.
C. Arbitration Mandatory for Lawyers.
Fee arbitration pursuant to these rules is voluntary for clients and
mandatory for lawyers if commenced by a client.
D. Effect of Arbitration.
(1) The Fee Arbitration is binding
where all parties have agreed in writing that it will be binding.
(2) In the absence of a written
agreement to be bound by the arbitration, the decision automatically
becomes binding, unless, as permitted under Rule 14.07.B., any party
seeks a trial de novo pursuant to Wisconsin's rules of civil procedure
within 30 days after service of the decision. This 30 day time period
shall not be extended by an application for modification under these
rules.
(3) After all parties have agreed in
writing to be bound by an arbitration award, a party may not withdraw
from that agreement unless all parties agree to the withdrawal in
writing. At any time during the proceedings, the parties may agree in
writing to be bound by the decision.
E. Jurisdiction. Any lawyer, as defined
in SCR 14.01.A(3), is subject to these rules for fee arbitration.
F. Disputes not Subject to Arbitration.
These rules do not apply to the following:
(1) Disputes where the lawyer is also
admitted to practice in another jurisdiction, the lawyer maintains no
office in Wisconsin, and no portion of the legal services was rendered
in Wisconsin;
(2) Disputes where the client seeks
affirmative relief for damages against the lawyer based upon alleged
malpractice or professional misconduct;
(3) Disputes where entitlement to and
the amount of the fees and/or costs charged or paid to a lawyer by the
client or on the client's behalf have been determined by court order,
rule, or decision;
(4) Disputes where a third person is
responsible for payment of the fees and the client fails to join in the
request for arbitration; and
(5) Disputes where the request for
arbitration is filed more than [four] year(s) after the lawyer-client
relationship has been terminated or more than [four] year(s) after the
final billing has been received by the client, whichever is later,
unless a civil action concerning the disputed amount is not barred by
the statute of limitations.
G. Notice of Right to Arbitration; Stay
of Proceedings; Waiver by Client.
(1) Prior to or at the time of service
of a summons in a civil action against his or her client for the
recovery of fees, costs, or both for professional services rendered, a
lawyer shall serve upon the client [by certified mail return receipt
requested] a written notice of the client's right to arbitrate. The
notice, in a form approved by the Fee Arbitration Program, shall include
a provision advising the client that failure to file a Petition for Fee
Arbitration within 30 days of service of notice of the right to
arbitrate shall constitute a waiver of the right to arbitrate. Failure
to give this notice shall be grounds for dismissal of the civil
action.
(2) If a lawyer commences a fee
collection action in any court, the court shall issue an order of stay
upon the client giving notice to the court and the lawyer that a
Petition for Arbitration was filed with the Fee Arbitration Program
within [thirty] days of service of the notice of the right to
arbitrate.
(3) After a client files a Petition,
the lawyer shall refrain from any nonjudicial collection activities
related to the fees and/or costs in dispute pending the outcome of the
arbitration.
(4) Unless all parties agree in writing
to the arbitration, the right of the client to petition or maintain an
arbitration is waived if:
(a) the client fails to file a Petition
for Arbitration within [thirty] days of service of the notice of right
to arbitrate pursuant to these rules; or
(b) the client commences or maintains a
civil action or files any pleading seeking judicial resolution of the
fee dispute, or seeking affirmative relief against the lawyer for
damages based upon alleged malpractice.
Commentary: A fee arbitration system provides lawyers and clients
with an out-of-court method of resolving fee disputes that is
expeditious, confidential, inexpensive, and impartial. The court should
ensure adequate funding for an effective program.
Although these rules only address fee
arbitration, consideration should be given to the development of
mediation as a component of the program as a prerequisite or alternative
to fee arbitration.
A client who believes he or she may
have been overcharged by a lawyer may have the lawyer's fee reviewed
without incurring the expense of formal litigation. Participation in the
Fee Arbitration Program is mandatory for lawyers if the request for
arbitration is commenced by a client. The decision is binding only upon
written agreement of the parties. In the absence of a written agreement
to be bound by the arbitration decision, any party may seek a trial de
novo within 30 days after service of the decision. The decision becomes
binding if no party seeks a trial de novo within the 30 day period. The
program is voluntary for the client since the lawyer regulatory system
has no power to regulate the consumer of legal services. However,
nothing in these rules precludes a lawyer and a client from entering
into a contract to participate in binding arbitration under these rules
as permitted by law.
A lawyer must notify a client of the
availability of the Fee Arbitration Program prior to or at the time of
service of a summons in a civil action against the client to recover
fees and/or costs for professional services. The rule provides that
notice be sent by certified mail return receipt requested.
However, a jurisdiction may substitute
such other means of service as will reasonably establish receipt. The
client must file a Petition for Fee Arbitration within [thirty] days of
service of such notice or the client waives the right to petition or
maintain an arbitration proceeding under these rules. If all parties
agree, the fee arbitration can proceed even if the client did not file
the Petition for Fee Arbitration within the [thirty] day period.
The client also waives the right to
petition or maintain an arbitration if the client commences or maintains
a civil action or files any pleading seeking judicial resolution of the
fee dispute or seeking affirmative relief against the lawyer for damages
based on alleged malpractice. This prevents the same facts from being
the subject matter of the arbitration and a civil action. Nothing herein
precludes a client from filing a complaint with the disciplinary
authority. Nothing in these rules prevents the filing of a malpractice
action after a decision is rendered in the fee arbitration proceeding.
In accordance with Rule 14.07.B.(4), a decision under these rules is not
admissible in a subsequent malpractice action.
The scope of these rules includes costs
as well as fees. In many cases, fees and costs are inextricably linked.
The fee arbitration process should be able to resolve both issues in one
process.
The Fee Arbitration Program can be
expanded to handle disputes between lawyers if all parties agree to be
bound by the decision of the panel.
An alternative approach, which
currently works effectively in those jurisdictions where it has been
adopted, is to provide for arbitration which is both mandatory and
binding in all cases. Under such a system, the arbitration decision is
binding on the parties subject to appeal only in cases of demonstrable
and fundamental unfairness in the procedures used in deciding the
matter.
SCR 14.02. Fee Arbitration Program
A. Delegation of Fee Arbitration Function to State Bar of Wisconsin
and Milwaukee Bar Association. The Supreme Court of Wisconsin designates
the State Bar of Wisconsin and the Milwaukee Bar Association to run
equal branches of the statewide Fee Arbitration Program. Each of those
programs shall designate one member to serve as Chair of that branch of
the Program.
B. Composition. The Panels of the Fee
Arbitration Program shall consist of members of whom one-third shall be
nonlawyers. Members shall be appointed for terms of three years or until
a successor has been appointed. Appointments shall be on a staggered
basis so that the number of terms expiring shall be approximately the
same each year. No members shall be appointed for more than two
consecutive full terms, but members appointed for less than a full term
(either originally or to fill a vacancy) may serve two full terms in
addition to such part of a term.
C. Duties of the Fee Arbitration
Program. The Fee Arbitration Program shall have the following powers and
duties.
(1) to appoint, remove and provide
appropriate training for lawyer and nonlawyer arbitrators and
arbitration panels;
(2) to interpret these rules;
(3) to approve forms;
(4) to establish written procedures
that afford a full and equal opportunity to all parties to present
relevant evidence;
(5) to issue an annual report and
periodic policy recommendations, as needed, to the Supreme Court of
Wisconsin regarding the program;
(6) to maintain all records of the Fee
Arbitration Program;
(7) to determine challenges for cause
where an arbitrator has not voluntarily acceded to a challenge;
(8) to educate the public and the bar
about the Fee Arbitration Program; and
(9) to perform all acts necessary for
the effective operation of the program.
Commentary: Overall authority to administer the Fee Arbitration
Program is delegated by the Supreme Court of Wisconsin to the State Bar
of Wisconsin and Milwaukee Bar Association. Both lawyers and nonlawyer
members serve in the Fee Arbitration Program. Members are appointed for
three year terms. The State Bar of Wisconsin and the Milwaukee Bar
Association should ensure diversity in the membership of the Fee
Arbitration panels.
Members may be appointed for a period
not to exceed two consecutive full terms and a portion of an additional
term, if appointed originally to less than a full term. A rotation
system is employed in the appointment of members so that, generally, the
terms of one-third of the members expire annually. This procedure
preserves continuity while inviting the fresh ideas which new personnel
inevitably bring to a task.
The Fee Arbitration Program has the
duty to inform the bar and the public about the Fee Arbitration Program
through such means as brochures, public service announcements, and any
other means available. There should be a central place where the public
can call with questions about lawyers and which can refer appropriate
matters to the Fee Arbitration Program. Members of the bar should be
encouraged to inform any member of the public known to have a fee
dispute with a lawyer about the right to seek fee arbitration or to
pursue other available means to resolve the dispute, such as
mediation.
Depending on funding, pro bono
requirements, and other considerations, the Fee Arbitration Program may
authorize the reimbursement of reasonable costs and expenses to its
members and to arbitrators.
SCR 14.03. Arbitrators
A. List of Approved Arbitrators. The Fee Arbitration Program shall
maintain a list of approved arbitrators and shall adopt written
standards for the appointment of the arbitrators. Such standards should
ensure appropriate training and experience for arbitrators as well as
diversity in the background and experience of the arbitrators.
Arbitrators shall be appointed for terms of [three] years and may be
reappointed. For good cause, the Fee Arbitration Program may remove an
arbitrator from the list of approved arbitrators, and may appoint a
replacement member to serve the balance of the term of the removed
member.
B. Panels. The Fee Arbitration Program
shall appoint panels from the list of approved arbitrators. For disputes
involving [$5,000] or more, the panel shall consist of three arbitrators
of whom one shall be a nonlawyer member. For disputes involving less
than [$5,000], or in any case if the parties so stipulate, the panel
shall consist of a sole arbitrator who shall be a lawyer. If the panel
consists of three members, the Fee Arbitration Program shall designate
one member to act as Chair of the panel and to preside at the
arbitration hearing.
C. Conflicts of Interest. Within [five]
days of the notification of appointment to a panel, an arbitrator shall
notify the Fee Arbitration Program of any conflict of interest with a
party to the arbitration as defined in the ABA Code of Judicial Conduct
with respect to part-time judges. Upon notification of the conflict, the
Fee Arbitration Program shall appoint a replacement from the list of
approved arbitrators.
D. Challenges for Cause. A party may
challenge any arbitrator for cause. A challenge for cause naming the
arbitrator and the reason for the challenge shall be filed within
[fifteen] days after service of the notice of appointment. An arbitrator
shall accede to a reasonable challenge and the Fee Arbitration Program
shall appoint a replacement. If an arbitrator does not voluntarily
accede, the Fee Arbitration Program shall decide whether to appoint a
replacement. The decision of the Fee Arbitration Program on challenges
shall be final.
E. Duties. The panel shall have the
following powers and duties.
(1) to take and hear evidence
pertaining to the proceeding;
(2) to administer oaths and
affirmations;
(3) to compel, by subpoena, the
attendance of witnesses and the production of books, papers, and
documents pertaining to the proceeding, and consider challenges to the
validity of subpoenas;
(4) to issue decisions; and
(5) to perform all acts necessary to
conduct an effective arbitration hearing.
Commentary: The Fee Arbitration Program appoints both lawyers and
nonlawyers to serve as arbitrators for [three] year renewable terms, and
maintains a list of approved arbitrators. When a Petition is received,
the Fee Arbitration Program appoints from the list of approved
arbitrators a panel of one or three arbitrators to hear the matter,
depending on the amount in dispute. For larger jurisdictions, the Fee
Arbitration Program may hire staff or designate a presiding arbitrator
to handle the appointment of panels or other administrative tasks as
delegated by the Fee Arbitration Program. The number of people on the
list of approved arbitrators should not be so large as to prevent the
participating arbitrators from obtaining sufficient experience in the
program.
Appointments to the list of approved
arbitrators should represent all segments of the profession and the
general population, including diversity on the basis of race, gender and
practice setting. Arbitrators should also be dispersed throughout the
state to increase access to the fee arbitration process.
The Fee Arbitration Program should
adopt written standards for appointment of arbitrators which may include
compliance with training requirements, ability to meet minimum time and
case commitments, years in practice and experience. All panels of more
than one arbitrator should include one nonlawyer member.
Members of panels exercise a
quasi-judicial role and should, therefore, be disqualified upon the same
grounds and conditions applicable to judges. The Fee Arbitration Program
may wish to provide that within [fifteen] days after service of the
notice of appointment, any party may file one peremptory challenge. In
the event of such a challenge, the Fee Arbitration Program should
relieve the challenged arbitrator and appoint a replacement.
Panels do not render advisory opinions
but, rather, adjudicate fee controversies between lawyers and
clients.
In jurisdictions with a high volume of
arbitration cases, consideration should be given to having pre-set
arbitration panels which meet at specified times to simplify the
scheduling of hearings.
SCR 14.04. Commencement of Proceedings
A. Petition to Arbitrate. A fee arbitration proceeding shall commence
with the filing of a Petition for Arbitration on a form approved by the
Fee Arbitration Program [and paying the appropriate filing fee as
established by the {Fee Arbitration Program}]. Any person who is not the
client of the lawyer but who has paid or may be liable for the lawyer's
fees may consent to be joined by the client as a party to the
arbitration. The Petition for Arbitration must be signed by the client
and any other party included by the client.
B. Fee Arbitration Program. The Fee
Arbitration Program will review the Petition to determine if it is
properly completed and if the Fee Arbitration Program has jurisdiction.
If the Petition is not properly completed, the Fee Arbitration Program
will return it to the petitioner and specify what clarification or
additional information is required. If the Fee Arbitration Program does
not have jurisdiction, the petitioner shall be so advised.
C. Service of Petition; Response.
Within [five] days of the receipt of a properly completed Petition, the
Fee Arbitration Program shall serve a copy of the Petition, along with
the Fee Arbitration Response Form on the respondent. Within [twenty]
days after service, the respondent shall file the completed Fee
Arbitration Response Form with the Fee Arbitration Program which shall
forward a copy to all other parties. The Fee Arbitration Program shall
serve a copy of the Petition for Arbitration and a Fee Arbitration
Response Form upon the law firm, if any, with which a lawyer-party is
associated. If the respondent is a lawyer, the respondent shall set
forth in the response the name of any other lawyer or law firm who the
lawyer claims is responsible for all or part of the client's claim.
Within [five] days of receipt of the response, the Fee Arbitration
Program shall serve on the lawyer(s) or law firm(s) named in the
Response a copy of the Petition for Arbitration and a Fee Arbitration
Response Form for completion. Within [twenty] days after service, the
lawyer(s) or law firm(s) may file the completed Fee Arbitration Response
Form with the Fee Arbitration Program which shall forward a copy to all
other parties.
D. Failure of a Lawyer Respondent to
Respond. Failure of a lawyer respondent to file the Fee Arbitration
Response Form shall not delay the scheduling of a hearing; however, in
any such case the panel may, in its discretion, refuse to consider
evidence offered by the lawyer which would reasonably be expected to
have been disclosed in the response.
E. Client Consent Required. If a lawyer
files a Petition for Arbitration the arbitration shall proceed only if
the client files a written consent with [thirty] days of service of the
Petition.
F. Settlement of Disputes. If the
dispute giving rise to the Petition for Arbitration has been settled,
upon reasonable confirmation of that settlement, the matter shall be
dismissed by the Fee Arbitration Program or by the panel if one has been
assigned.
G. Appointment of Panel. The Fee
Arbitration Program shall, within [ten] days after receipt of the
Petition for Arbitration, appoint a panel and mail to the parties
written notification of the name(s) of the panel member(s) assigned to
hear the matter.
Commentary: The fee arbitration process begins with the filing of a
Petition of Arbitration on a form approved by the Fee Arbitration
Program. The respondent has twenty days after service to return the Fee
Arbitration Response Form. The process is commenced either unilaterally
by a client or by the lawyer with the client's consent. If it is
initiated by the client, participation is mandatory on the part of the
lawyer.
The Fee Arbitration Program is designed
to be simple and fast. Consequently, most cases should be concluded in
an average of six months.
If a lawyer fails to timely file a Fee
Arbitration Response Form, the hearing will nonetheless be held in the
normal course and the panel may, in its discretion, refuse to consider
evidence offered by the lawyer which would reasonably be expected to
have been disclosed in the Response. This is not intended as a default
procedure. It will still be necessary for the panel to determine the
reasonableness of the fee.
The Fee Arbitration Program must serve
a copy of the Petition and the Fee Response Form on the law firm, if
any, of which a lawyer is a member. The purpose of this rule is to
assure that where a law firm is due a fee, or is obligated therefor, the
law firm will have notice of the arbitration and an opportunity to
participate.
SCR 14.05. Hearing
A. Notice of Hearing. The panel shall set the date, time and place
for the hearing. The panel shall send notice of the hearing to the
parties not less than [thirty] but no more than [sixty] days in advance
of the hearing date, unless otherwise agreed by the parties.
B. Representation by Counsel. Any party
may be represented by counsel.
C. Recording of Proceedings. A party to
the proceedings may make arrangements to have the hearing reported at
the party's own expense, provided notice is given to the other parties
and the panel at least [five] days prior to the scheduled hearing. If a
party orders a transcript, that party shall provide a copy of the
transcript to the panel free of charge. Any other party is entitled at
his or her own expense to acquire a copy of the transcript by making
arrangements directly with the reporter. A panel, in its discretion, may
make arrangements to have a hearing recorded and the parties may obtain
a copy at their own expense.
D. Continuances. For good cause shown,
a panel may continue a hearing upon the request of a party or upon the
panel's own motion.
E. Oaths and Affirmations. The
testimony of witnesses shall be by oath or affirmation.
F. Panel Quorums. All three arbitrators
shall be required for a quorum where the panel consists of three
members. A panel of three arbitrators shall act with the concurrence of
at least two arbitrators.
G. Appearance; Failure of a Party to
Appear. Appearance by a party at a scheduled hearing shall constitute
waiver by said party of any deficiency with respect to the giving of
notice of hearing. The panel may proceed in the absence of any party or
representative who, after due notice, fails either to be present or to
obtain a continuance. A decision shall not be made solely on the default
of a party. The panel shall require parties who are present to submit
such evidence as the panel may require to issue a decision.
H. Waiver of Personal Appearance. Any
party may waive personal appearance and submit testimony and exhibits by
written declaration under oath to the panel. Such declarations shall be
filed with the panel at least [ten] days prior to the hearing. If all
parties, in writing, waive appearances at a hearing, the matter may be
decided on the basis of written submissions. If the panel concludes that
oral presentations are necessary, the panel may schedule a hearing.
I. Telephonic Hearings. In its
discretion, a panel may permit a party to appear or present witness
testimony at the hearing by telephonic conference call. The costs of the
telephone call shall be paid by the party.
J. Stipulations. Agreements between the
parties as to issues not in dispute and the voluntary exchange of
documents prior to the hearing are encouraged.
K. Evidence. The panel shall accept
such evidence as is relevant and material to the dispute and request
additional evidence as necessary to understand and resolve the dispute.
The Wisconsin rules of evidence need not be strictly followed. The
parties shall be entitled to be heard, to present evidence and to
cross-examine parties and witnesses. The panel shall judge the relevance
and materiality of the evidence.
L. Subpoenas. Upon request of a party
and for good cause shown, or on its own initiative, the panel may issue
subpoenas for witnesses or documents necessary to a resolution of the
dispute. The requesting party shall be responsible for service of the
subpoenas.
M. Reopening of Hearing. For good cause
shown, the panel may reopen the hearing at any time before a decision is
issued.
N. Death or Incompetency of a Party. In
the event of death or incompetency of a party, the personal
representative of the deceased party or the guardian or conservator of
the incompetent may be substituted.
O. Burden of Proof. The burden of proof
shall be on the lawyer to prove the reasonableness of the fee by a
preponderance of the evidence.
Commentary: The goal of these rules is to provide a setting for
hearings that is informal yet fair. To that end, the panel has
discretion to grant postponements but need not permit the process to be
subverted by unexcused absences. The panel will receive the evidence and
testimony offered and judge its relevance and materiality. While the
hearing may be conducted informally, witnesses should be required to
testify under oath.
There is no provision for formal
discovery; however, the panel has the power of subpoena, subject to
rules of relevancy and materiality.
The burden of proof in fee arbitration
is on the lawyer to prove the reasonableness of the fee by a
preponderance of the evidence. This is consistent with SCR 20:1.5, which
provides that a lawyer's fee shall be reasonable.
The panel may consider evidence
relating to claims of malpractice and professional misconduct, but only
to the extent that those claims bear upon the fees, costs, or both to
which the lawyer is entitled. The panel may not award affirmative relief
in the form of damages for injuries underlying any such claim.
SCR 14.06. Decision
A. Form of Decision. The panel's decision shall be in writing and
shall include a clear statement of the amount in dispute, whether and to
whom monies are due, and a brief explanation of the decision.
B. Issuance of Decision. The decision
should be rendered within [thirty] days of the close of the hearing or
from the end of any time period permitted by the panel for the filing of
supplemental briefs or other materials. The arbitrator or panel chair
shall forward the decision to the Fee Arbitration Program which shall
serve a copy of the decision on each party to the arbitration.
C. Modification of Decision.
(1) On application to the panel by a
party to a fee dispute, the panel may modify or correct a decision
if:
(a) there was an error in the
computation of figures or a mistake in the description of a person,
thing, or property referred to in the decision;
(b) the decision is imperfect in a
matter of form not affecting the merits of the proceeding; or
(c) the decision needs
clarification.
(2) Any party may file an application
for modification with the panel within [twenty] days after service of
the decision and shall serve a copy of the application on all other
parties. An objection to the application must be filed with the panel
within [ten] days after service of the application for modification.
(3) An application for modification
shall not extend the thirty day time period to seek trial de novo under
these rules.
D. Retention of Files. The Fee
Arbitration Program shall maintain all fee arbitration files for a
period of [three] years from the date a decision is issued.
Commentary: In order to bring a final and speedy conclusion to fee
disputes, the decision of the panel is required to be in writing and
should be rendered within thirty days. Discretion to extend the time
period for unusually complicated or difficult matters should be
provided.
SCR 14.07. Effect of Decision:
Enforcement
A. Compliance with Decision.
(1) Where the parties have agreed to be bound by the arbitration or
have settled the dispute, the parties shall have [thirty] days from
service of the written decision or the date the stipulation of
settlement is signed by the parties to comply with the decision or
settlement.
(2) Where there is no agreement to be
bound by the arbitration, any party is entitled to a trial de novo if
sought within thirty days from service of the written decision, except
that if a party willfully fails to appear at the arbitration hearing,
that party shall not be entitled to a trial de novo. 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. If a trial de novo is not sought within
30 days, the decision becomes binding.
B. Trial De Novo.
(1) If there is an action pending, the
trial de novo shall be initiated by filing a rejection of arbitration
award and request for trial in that action within 30 days from service
of the written decision.
(2) If no action is pending, the trial
de novo shall be initiated by the commencement of an action in the court
having jurisdiction over the amount in controversy within thirty days
from the service of the written decision.
(3) The party seeking a trial de novo
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 de novo,
which allowance shall be fixed by the court. In fixing the attorney's
fees, the court shall consider the decision and determinations of the
arbitrators, in addition to any other relevant evidence.
(4) Except as provided in this rule,
the decision and determinations of the arbitrators shall not be
admissible in any action or proceeding and shall not operate as
collateral estoppel or res judicata.
C. Petition to Confirm, Correct, or
Vacate the Decision.
(1) If a civil action has been stayed
pursuant to these rules, any petition to confirm, correct, or vacate the
decision shall be filed with the court in which the action is pending,
and shall be served in accordance with Wisconsin's statutes and rules of
civil procedure.
(2) If no action is pending in any
court, the decision may be confirmed, corrected, or vacated by petition
to the court having jurisdiction over the amount of the decision, in
accordance with Wisconsin's statutes and rules of civil procedure.
(3) A court confirming, correcting or
vacating a decision under these rules may award to the prevailing party
reasonable fees and costs including, if applicable, fees or costs on
appeals incurred in obtaining confirmation, correction or vacation of
the award. The party obtaining judgment confirming, correcting, or
vacating the decision shall be the prevailing party except that, without
regard or consideration of who the prevailing party may be, if a party
did not appear at the arbitration hearing in the matter provided by
these rules, that party shall not be entitled to attorney's fees or
costs upon confirmation, correction, or vacation of the award.
Commentary: Thirty days is considered a reasonable time period in
which to expect the parties to comply with the decision. The thirty days
begins to run when the decision in the fee arbitration process is served
on the parties or when a settlement agreement is signed.
The Fee Arbitration Program itself has
no authority to enforce a decision. Either party may use the summary
action mechanisms which are provided in Wisconsin to obtain a judgment
consistent with the panel's decision as expeditiously as possible.
Reasonable fees and costs may be
awarded to the prevailing party in an action to confirm, correct or
vacate a panel decision, unless the prevailing party failed to appear at
the arbitration hearing in the manner provided in the rules. This
exception should encourage full participation of the parties in the
arbitration proceeding.
Every jurisdiction is encouraged to
consider developing means of assisting clients in enforcing decisions.
Some jurisdictions use a panel of pro bono lawyers to assist the clients
in obtaining civil judgments. Some jurisdictions refer lawyers who fail
to comply with a decision or judgment to an appropriate agency for
administrative, nondisciplinary action such as that used in the
jurisdiction for failure to comply with mandatory continuing legal
education requirements or failure to pay registration fees.
SCR 14.08. Confidentiality
A. Confidentiality of Proceedings. Except as may be otherwise
necessary for compliance with these rules or to take ancillary legal
action with respect thereto, all records, documents, rules, proceedings
and hearings pertaining to the arbitration of any dispute under these
rules shall be confidential and will be closed to the public, unless
ordered open by a [court of general jurisdiction] upon good cause shown,
except that a summary of the facts, without reference to the parties by
name, may be publicized in all cases once the proceeding has been
formally closed.
B. Confidentiality of Information. A
lawyer may reveal information relating to the representation of the
client to the extent necessary to establish his or her fee claim. In no
event shall such disclosure be deemed a waiver of the confidential
character of such matters for any other purpose.
Commentary: SCR 14.8.B. is consistent with SCR 20:1.6. or its
equivalent, which permits limited disclosure of otherwise confidential
information only "to the extent reasonably...necessary to establish a
claim or defense...in a controversy between the lawyer and the
client...."
SCR 14.09. Immunity
A. Parties and Witnesses. Parties and witnesses shall have such
immunity as is applicable in a civil action in the jurisdiction.
B. Fee Arbitration Program;
Arbitrators; Staff. Members of the Fee Arbitration Program, panels and
staff shall be immune from suit for any conduct in the course and scope
of their official duties.
SCR 14.10. Service
A. Method. Service on any party other than a lawyer or law firm shall
be by personal delivery, by any person authorized by the Chair of the
Fee Arbitration Program, or by deposit in the United States mail,
postage paid, addressed to the person on whom it is to be served at his
or her office or home address as last given to the Fee Arbitration
Program.
B. Official Address of Lawyer. Service
on an individual lawyer shall be at the latest address shown on the
official membership records of the State Bar of Wisconsin. Service on a
law firm shall be at the address as shown in the Petition for
Arbitration Form unless the law firm designates a lawyer to be
responsible for the arbitration, in which case, service shall be at the
designee's latest address shown on the official membership records of
the State Bar of Wisconsin. Service shall be in accordance with SCR
14.10.A. above.
C. Service on Represented Parties. If
either party is represented by counsel, service shall be on the party as
indicated in SCR 14.10.A. and 14.10.B., and on the counsel at the latest
address shown on the official membership records of the State Bar of
Wisconsin.
D. Completion of Service. The service
is complete at the time of deposit. The time for performing any act
shall commence on the date service is complete and shall not be extended
by reason of service by mail.
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