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A Manhattan judge has created a gaping loophole in the New York fee arbitration system that is supposed to provide clients with a speedy and certain remedy for overcharges ("Attorney's Bid to Challenge a 'Binding' Arbitration Award Succeeds," New York Law Journal, July 14, 2008). If not corrected, this decision ratifies a predatory practice by allowing lawyers to use retainers that promise binding fee arbitration, but void that promise when they lose and secure a trial de novo.
Clients should be able to trust retainers to mean what they say; they should not be required to scour every obscure provision of the Rules of the Chief Administrative Judge (Part 137) to ensure that the language drafted by their lawyer actually affords them a final and binding arbitration.
It is incumbent on the appellate division and the Administrative Board of the Courts to protect client rights by closing this new loophole and restoring the system as envisioned by the 1995 Kaye Committee on the Profession and the Courts - when a lawyer's retainer agrees to binding fee arbitration, only the client has a right to de novo review.
Sincerely,
James C. Turner
* James C. Turner is Executive Director of HALT (Help Abolish Legal Tyranny), www.halt.org , a nonprofit public interest group dedicated to promoting simple, affordable and accountable justice for all.
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