OHIO STATE BAR ASSOCIATION PROF. CON. R. 1.5(f) ATTORNEY'S FEE DIVISION DISPUTE RESOLUTION PLAN
Prof. Con. R. 1.5(e), effective February 1, 2007, provides as follows:
Prof. Con. R. 1.5(e) Division of fees among lawyers
Lawyers who are not in the same firm may divide fees only if all of the
(1) the division of fees is in proportion to the services performed by
each lawyer or each lawyer assumes joint responsibility for the representation
and agrees to be available for consultation with the client;
(2) the client has given written consent after full disclosure of the
identity of each lawyer, that the fees will be divided, and that the division of fees
will be in proportion to the services to be performed by each lawyer or that each
lawyer will assume joint responsibility for the representation;
(3) except where court approval of the fee division is obtained, the
written closing statement in a case involving a contingent fee shall be signed by
the client and each lawyer and shall comply with the terms of division (c)(2) of
(4) the total fee is reasonable
Subpart (f) of Prof. Con. R. 1.5 mandates that any disputes between lawyers arising out of a fee division shall be "divided in accordance with mediation or arbitration provided by a local bar association." Such disputes which cannot be resolved by a local bar association "shall be referred to the Ohio State Bar Association for mediation or arbitration."
In order to provide such mediation/arbitration process, it is the recommendation of the Ohio State Bar Committee on Alternative Dispute Resolution that the Ohio State Bar Association adopt the following dispute resolution program and procedures to comply with the OSBA's duties under Prof. Con. R. 1.5(f):
The Ohio State Bar Association hereby establishes a mediation/arbitration process for fee division disputes between lawyers under Prof. Con. R. 1.5.
Mediators and arbitrators shall be selected from a statewide panel nominated by the district Board of Governors members and filed with the OSBA Bar Counsel's Office, and duly appointed by the president of the OSBA. Each member of the Board of Governors shall nominate to the president a list of six experienced and qualified lawyers located in the Board of Governors member's district and willing to serve as mediators and arbitrators. Lawyers appointed to be mediators and arbitrators shall be appointed by the president of the OSBA from the list nominated by the Board of Governors members, and shall serve three year terms and may be reappointed. Vacancies during three-year terms may be filled by appointment of the president upon the advice and consent of the Board of Governors. The statewide panel of mediators and arbitrators shall be maintained such that there are always at least six lawyers from each OSBA district.
In disputes between lawyers under Prof. Con. R. 1.5, any one of the disputants may notify the OSBA Bar Counsel in writing concerning the dispute and request that the mediation/arbitration process be made available for resolution of the dispute. Such party shall state in writing that the dispute is one arising under Prof. Con. R. 1.5 and that such dispute is not then pending for resolution before any local bar association. Such referring party will likewise provide the name and address of all parties to the dispute, and shall simultaneously send a copy of such written request to all such parties.
Upon receipt of such notice, the OSBA Bar Counsel shall mail a form to each disputant requesting him or her to advise whether he or she wishes to attempt to resolve the dispute by means of mediation or by means of arbitration. If at least one of the parties chooses mediation, the first method of dispute resolution utilized will be mediation.
Should one of the disputants choose mediation, the OSBA Bar Counsel shall assign a mediator from the list of mediators and arbitrators. The assignment of the mediator will be with due regard to any potential conflicts of interest and with due regard to the geographical location of the disputing lawyers and the offices of the mediator.
Should the disputants choose arbitration, or if mediation is unsuccessful in producing a resolution of the fee division dispute, arbitration of the dispute shall proceed and shall be binding. The disputants shall inform the OSBA Bar Counsel whether they want one arbitrator or a panel of three arbitrators. If the disputants cannot agree whether to use one arbitrator or three, a panel of three arbitrators shall be used. The OSBA Bar Counsel shall choose the names of at least five arbitrators to submit to the parties. Each of the parties may eliminate one name. If necessary, in the case of a three-arbitrator panel, the Bar Counsel may present additional names to the parties. After each party has had the opportunity to eliminate one name, the Bar Counsel shall name the three arbitrators from the remaining list of names. The chairperson of the panel of three arbitrators shall be chosen by the panel.
The disputants and the arbitrator(s)/mediator shall agree upon the location, date, and time of the hearing. Failing agreement, the arbitrator(s)/mediator shall set the location, date and time of the conference (for a mediation) or the hearing (for an arbitration), giving due regard to the express wishes of the parties and attempting to accommodate the parties' schedules as much as possible. The arbitrator(s)/mediator shall endeavor to set the hearing no later than 60 days after his/her/their appointment.
The mediator, in the case of mediation, shall within 10 days after a mediation conference send a written report to the Bar Counsel reporting whether or not the matter was resolved or settled as a result of the mediation conference. The bar Counsel shall send a copy of such written report of the mediator to all parties.
In the case of arbitration, the arbitrator or the chairperson of a three-member arbitration panel shall be responsible for conducting the hearing, reviewing documents presented by the parties, and rendering a written arbitration award. Such written arbitration award shall be delivered to the Bar Counsel within 10 days after the conclusion of the arbitration hearing. The Bar Counsel shall serve the written arbitration award upon the disputants by ordinary mail.
The then-current American Arbitration Association Commercial Arbitration Rules, Rules 22-47, and Rule 52, are hereby incorporated for use in the arbitration of fee division disputes administered by the OSBA pursuant to this Plan, to the extent that those Rules are not inconsistent with this OSBA Plan.
No lawyer who has served as a mediator for the disputing parties is eligible to serve as an arbitrator in the same matter. Arbitrators shall execute an oath that they have no bias or conflict of interest that would prevent them from serving as fair arbitrators for the parties.
The mediator and/or arbitrator(s) will provide their services on a pro bono basis, except for travel expenses or mileage in excess of 20 miles, unless such expenses are waived by the mediator/arbitrator(s), which will be reimbursed to them by the disputants in equal shares. Mileage in excess of 20 miles will be reimbursed by the parties, based upon the Internal Revenue Code rates, as will overnight lodging and meals, if necessary. However, for any hearing that exceeds two hours in length, whether a mediation or an arbitration, the disputants shall pay the mediator or each arbitrator $100.00 per hour. Such fee shall be paid in equal shares by the disputants within 30 days following the conclusion of a mediation conference, or 30 days after receipt of the written arbitration award.
All proceedings hereunder shall be confidential and all records maintained as such.
Enforcement of an arbitration award if not otherwise satisfied by the parties, may be made in accordance with Ohio Revised Code Sections 2711.09 through 2711.12.