December 11, 2007
A Washington, D.C., advocacy group calling itself HALT (for Help Abolish Legal Tyranny) has published the results of its first-ever survey of fee-arbitration agencies nationwide, and the Fee Arbitration Board in Massachusetts has received a less than gentlemanly C-minus.
Billed as the nation's largest and oldest law reform group, HALT dedicates itself to the principle that "all Americans should be able to handle their legal affairs simply, affordably and equitably."
But in surveying the fee arbitration forums in all 50 states and the District of Columbia, HALT, according to its senior counsel, Suzanne M. Blonder, found a system "plagued by an appalling pattern of biased procedures, insufficient resources and little enforcement."
The FAB in this state, which was established in 1974 under the aegis of the Massachusetts Bar Association, was ranked 14th in the country, behind Maine but ahead of New Hampshire and Vermont, both of which received a failing grade for their FABs. Blonder notes that, of the 51 jurisdictions surveyed, 38 received grades below C, and none received a grade higher than a B.
Asked what it is about the FAB here that earned it a grade of C-minus, Blonder zeroes in on the board rules that permit lawyers "to reject a client's request to settle the conflict through arbitration" - a move that forces the client to take the case to court. "That can be cost-prohibitive and so time-consuming that it's not worth pursuing," she says, explaining that HALT favors mandatory participation by lawyers in the arbitration.
Blonder also objects to "a lawyer-controlled operation" in which lay persons are allowed to serve only if the fee in dispute exceeds $10,000. "These are disputes between a lawyer and a non-lawyer, and we think those kinds of perspectives should be considered," she says.
Springfield attorney Paul P. Nicolai, who chairs the 12-member Fee Arbitration Board at the MBA, says he is not troubled by the grade HALT gave the FAB.
"We've looked at the other [states'] programs, at the national rules [recommended by the American Bar Association], and we don't see much that we don't have, given what it is - voluntary and low cost," he says. "Given what we're supposed to do, I think we do it fairly well."
Still, Nicolai acknowledges that HALT's survey results prompted the FAB "to look at areas of improvement ... maybe ways to more widely publicize the availability of the program [and] ways parties could enforce an arbitration award."
As for the grade he thinks the FAB deserves, Nicolai says, "For what we do, frankly I think we're somewhere in the A to A-plus ranks."
© Massachusetts Lawyers Weekly, 2007
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