Attorney-Client Fee Arbitration: A Dissenting View
![handle is hein.journals/utahlr1990 and id is 287 raw text is: Attorney-Client Fee Arbitration: A Dissenting View
Lester Brickman*
TABLE OF CONTENTS
I. INTRODUCTION ................................... 277
II. FIDUCIARY OBLIGATION ............................ 282
A. Fiduciary Fairness-in-Fact Standard ........ 284
B. Fee Agreements are Governed by the Fairness-
in-Fact Standard ............................ 287
III. ETHICAL OBLIGATIONS ............................. 289
IV. STANDARDS FOR JUDICIAL REVIEW OF ARBITRATION
A W ARDS ......................................... 292
A. Substantive Law Used by the Arbitrator ...... 292
B. Judicial Review of Arbitration Awards ........ 293
C. Divergent Outcomes in Fee Disputes: Judicial
Proceedings v. Arbitration ................... 298
V. CONCLUSION/PROPOSAL ............................ 305
I. INTRODUCTION
No single issue between lawyer and client arises more fre-
quently or generates more public resentment than fee problems.'
Ethical tenets urge lawyers to resolve fee 4isputes without resort to
litigation.2 Where such procedures exist, attorneys are admonished
to submit disputes to arbitration.3 In several jurisdictions, arbitra-
* Professor of Law, Benjamin N. Cardozo School of Law. I wish to acknowledge the
research assistance of John Bibona and Jan Ulman.
1. See Report of Comm'n on Professionalism to the Bd. of Governors and House of
Delegates of the ABA, 112'F.R.D. 243 (1986); see also, Special Comm. on Resolution of Fee
Disputes of ABA Section of the Bar Activities, The Resolution of Fee Disputes: A Report
and Model By-Laws 1 (1974) [hereinafter ABA Fee Dispute Report] (Disputes concerning
fees are universally recognized as constituting the most serious problem in the relationship
between the Bar and the public.).
2. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 2-23 (1986)(stating that an
attorney should not sue a client for a fee unless necessary to prevent fraud or gross imposi-
tion by the client) [hereinafter MODEL CODE]; ABA CANONS OF PROFESSIONAL & JUDICIAL
ETmCS, No. 14 (1957)(stating that lawsuits with clients should be resorted to only to pre-
vent injustice, imposition or fraud).
3. See MODEL RULES OF PROFESSIONAL CONDUCT RULE 1.5 comment (1989) [hereinafter
MODEL RULES].](ViewImageLocal?handle=hein.journals/utahlr1990&div=27&collection=&method=preview&ext=.png&size=3)
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Attorney-Client Fee Arbitration: A Dissenting View
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