– Fees

(a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) (4) (5) (6) (7) the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing. This paragraph does not apply in any matter in which it is reasonably foreseeable that total cost to a client, including attorney fees, will be $500 or less. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of maintenance or support or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. 8.2 A written decision of the arbitrators shall be rendered after the matter has been submitted for decision. In the case of a non-binding decision, the written decision must clearly state in its first and last sentences that it will become binding within 30 days of the date it is mailed to the parties by the State Bar office, unless a lawsuit is filed by either party to have the fee dispute settled in a court of law. To enhance the efficiency of this process, the arbitrators shall attempt to issue their ruling within twenty (20) days of the hearing. The arbitration decision shall be made and signed by at least two (2) of the arbitrators. It shall state the amount of fees and costs awarded, if any, the terms of payment, if applicable, and to whom any payment shall be made. 8.3 The Chair shall forward the decision to the State Bar of Montana, which shall mail a copy of the decision to each party to the arbitration. 8.4 If at least two (2) of the arbitrators cannot agree on a decision, the matter shall be submitted to a new arbitration board within thirty (30) days of the failure of at least two (2) of the arbitrators to agree. 8.5 The parties may agree to be bound by the decision of the arbitration board by signing under Rule 5.3, Option (a) in the Arbitration Agreement. Absent an Arbitration Agreement signed by both parties, the arbitration decision shall become binding upon a non-participating attorney thirty (30) days from the date it is mailed to the parties, unless a lawsuit is filed in a court of law to settle the dispute. IX. CONFIDENTIALITY AND IMMUNITY 9.1 All records, documents, files, proceedings and hearings pertaining to the arbitration of any dispute under these rules shall be confidential, except as necessary to enforce these Rules, or coordinate efforts with the Montana Supreme Court’s Office of Disciplinary Counsel, and will be closed to the public. 9.2 Parties and witnesses shall have such immunity as is applicable in a civil lawsuit in the jurisdiction. Committee members, arbitrators, panels and staff shall be immune from a lawsuit for any conduct in the course and scope of their official duties. X. ENFORCEMENT 10.1 If, within sixty 60 days of the mailing of the Board's decision, an attorney against whom an arbitration decision is rendered has not filed a lawsuit in accordance with Rule 8.5 and has failed to comply with the Board's decision, the Supreme Court shall issue an order to show cause why the attorney should not be suspended from the practice of law. If good cause is not shown, the Supreme Court shall suspend the attorney from the practice of law. 10.2 Nothing in this Rule allows parties who have both agreed to binding arbitration to bring a lawsuit in a court of law. An arbitration award to which both parties initially agreed to be bound, may only be challenged pursuant to the Uniform Arbitration Act. 10.3 Upon compliance with the Board's decision, an attorney suspended under this rule shall provide proof of compliance to the Supreme Court. The Supreme Court may then issue an order of reinstatement to the attorney. XI. DECISION ENTERED AS AN ORDER OF COURT If no lawsuit is filed in a court of law within thirty (30) days as referred to in Rule 8.5 above, the arbitration decision may be entered and filed as an order of court pursuant to the Uniform Arbitration Act, MCA 27-5-311, (1993). State Bar of Montana - P.O. Box 577, Helena, MT 59624 - 406-447-2206 , PETITIONER(S) vs. , RESPONDENT(S) TO: THE STATE BAR OF MONTANA: PETITIONER(S) address and phone number: PETITION FOR ARBITRATION OF FEE DISPUTE No. (Street or P.O. Box) (City, State and Zip) (Daytime Phone No.) RESPONDENT(S) address and phone number: (Street or P.O. Box) (City, State and Zip) (Daytime Phone No.) Petitioner(s) hereby request(s) arbitration of the fee dispute between myself/ourselves and the above-named Respondent(s). The amount of the fee and/or costs in dispute is: $ . I/we certify the fee is not the subject of pending litigation and is not a fee which a court or administrative agency, i.e. Workers' Compensation Court or Social Security Disability matter, has statutory authority to determine. I/we understand this is not the forum for claims of professional or ethical misconduct or malpractice and that those issues are reviewed by the Office of Disciplinary Counsel (406)841-2980, or by a court of law. I/we further understand that by filing this Petition, I/we may not withdraw from this process once the opposing party has signed the Arbitration Agreement, unless the opposing party agrees to the withdrawal. I/we also understand that even if non- binding arbitration is selected, the award entered at the conclusion of the process may become binding under certain provisions of these rules. A brief statement of the facts giving rise to the dispute is as follows: (Attach separate sheet if necessary) DATED THIS day of , 20 . Petitioner Co-Petitioner (If applicable) State Bar of Montana - PO Box 577, Helena, MT 59624 - 406-447-2206 _______________________________________ _______________________________________ PETITIONER(S) -vs- _______________________________________ _______________________________________ RESPONDENT(S) ARBITRATION AGREEMENT No. ________ 1) Petitioner(s) affirm(s) that they have previously attempted to settle this dispute with the other party through a meeting, telephone call or written communication and that not withstanding those efforts, the assistance of arbitrators is requested to resolve this dispute. 2) Each party affirms that they have received and read the State Bar of Montana’s “Rules on Arbitration of Fee Disputes” and agrees to abide by those rules. 3) The parties agree that this dispute is not subject to a valid arbitration agreement under applicable state or federal law. 4) The parties agree that this dispute is not the subject of litigation filed prior to receipt of the Petition by the State Bar of Montana. 5) In addition to paragraphs 1 through 4 above, the parties further agree: (choose and sign ONE of the following options) OPTION A: To participate in "binding" arbitration and to immediately be bound by the decision of the arbitrators. (If both parties sign under Option A, the arbitrators' decision is final and cannot be reversed unless there is a showing of fraud or conflict of interest under the Uniform Arbitration Act.) Petitioner(s) Date Respondent(s) Date OPTION B: To participate in "non-binding" arbitration, with the arbitrators’ decision to become binding thirty (30) days after the date of the decision, unless Petitioner or Respondent files an action a lawsuit in the appropriate a court of law, within 30 days of the date of the arbitrators' decision, to settle this dispute. (If either party chooses Option B, there is a 30-day grace period from the date the decision is mailed to the parties, allowing either party to file a lawsuit if they disagree with the arbitrators' decision). Petitioner(s) Date Respondent(s) Date OPTION C – See next page…………………………… OPTION C (for Respondent only) I elect not to participate in the arbitration and understand that, depending upon my status as either attorney or client, Rules 5.5 and 5.6 respectively will thereafter govern. ______________________________ Date Respondent(s)