Fee dispute

[bluesman]

Dear Socrateaser,

I'm involved in a fee dispute with my former attorney. I filed a petition for arbitration with the Orange County Bar Association (in California) and had a hearing. I lost and the decision of the panel was that I owe the attorney the amount in dispute. The attorney would not agree to binding arbitration so this is currently a non-binding decision. As I'm sure you know, it will become binding in 30 days. No lawsuit has been filed yet so I believe I have until the end of that 30 days period to petition the court for a trial. So my question to you is:

1. How do I petition the court myself?
2. What do I file?
3. Is the basis of my filing the same as the basis of my petition to arbitrate?

Thanks.

[socrateaser]

>1. How do I petition the court myself?

I haven't looked at an OC arbitration agreement in a long time, but your rights to an appeal should be stated in the contract itself. If you can direct me to a link online, or post the terms and conditions, I'll be in a better position to advise you.

I realize that you may be under the impression that my rather precise knowledge of OC is the result of my regular practice of law therein. However, my knowledge of the jurisdiction the players is actually the result of personal experience, not professional practice.

I'll leave you to ponder that one at your leisure. LOL!

[bluesman]

Along with the decision I received a Notice of Your Rights After Fee Arbitration. This document tells me that because a lawsuit has not yet been filed (I assume they mean by the attorney against me) that I must file my own lawsuit in the proper court. The disputed amount is greater than $5,000 so I'm looking at Superior Court.

It then says I must file a complaint but doesn't go into anymore detail other than to say that a complain is a legal document that tells the court what you want and why I'm entitled to it. This, I already know. They (the Bar) say they do not have such forms and I should consult an attorney.

In trying to find a link for you I may have found the relevant section of the Civil Procedure Code.  (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1285-1287.6)

It appears that the only reason the court may vacate the award is if corruption/misconduct can be shown.

Because the attorney wouldn't agree to binding arbitration, I didn't go to the hearing with a bunch of evidence because I didn't want to show my cards knowing that the attorney could just sue me after arbitration if she didn't get what she wanted. I really went in just wanted to hear her side of it.

So, I don't think I'm looking at an appeal, technically speaking, am I. I think its more like a request for trial.

1. Are there grounds, other than corruption of misconduct, on which I can base my request for a trial?

2. Do attorney actions have to be egregious in order to be malpractice or can bad legal advice and awful legal strategy be enough for the court to entertain a trial on the matter? (BTW, I substituted the attorney out more than 1 year ago)

I know you don't know the details, but suffice it to say this attorney was not corrupt and did not do anything illegal. She simply was out-lawyered badly and it cost me my kids. I learned from my attorney I hired after her that she made crucial decisions and gave me advice from the very beginning that sank my case. Without that bad advice, the result may have been vastly different. Only in hindsight is it clear to this lay person that she botched my case.

3. With that said, can I proceed with a request to vacate the arbitration based on malpractice?

Thanks, Soc.

[socrateaser]

>1. Are there grounds, other than corruption of misconduct, on
>which I can base my request for a trial?

I believe that you are confusing your rights under the ocbar's arbitration agreement, with the requirements of the CA state arbitration statutes. You are looking at the wrong law.

Without going into excrutiating detail, your next move is to file an ordinary civil complaint, just like any other civil complaint in the court of appropriate jurisdiction (OC Superior Court, Santa Ana). The applicable statutory law is Cal. Bus. and Prof. Code, Section 6204.

[bluesman]

I thought I might be confusing some of these laws. So, rather than try to give you more detail and confuse the issue more, let me ask this basic question:

1. Based on the fact that I lost and the non-binding arbitration decision will become binding unless I act within 30 days, will filing the civil complaint as you suggest at least temporarily prevent the arbitration decision from becoming binding and subsequently being turned into a judgment by a court, or are the civil complaint and arbitration separate matters?

Thanks, Soc.

[socrateaser]

>I thought I might be confusing some of these laws. So, rather
>than try to give you more detail and confuse the issue more,
>let me ask this basic question:
>
>1. Based on the fact that I lost and the non-binding
>arbitration decision will become binding unless I act within
>30 days, will filing the civil complaint as you suggest at
>least temporarily prevent the arbitration decision from
>becoming binding and subsequently being turned into a judgment
>by a court, or are the civil complaint and arbitration
>separate matters?

If you file a complaint within 30 days and the money you paid the attorney part of the complaint (via breach of contract or malpractice, negligence, etc., whatever), then the arbitration award will be of no force or effect, and no evidence admitted in the arbitration or the ruling from it will be admissible in your new action, by you or your opponent.

In short, it will be as if your arbitration had never occured.

[bluesman]

That's the answer I was looking for.

Thanks very much, Soc!