EVERY LAWYER HAS at least one: a difficult situation that defies all attempts to be untangled; a misunderstanding on the verge of mushrooming into a big issue for lawyer and client; or a problem with another lawyer that's reached an uncomfortable impasse. These are the matters that tend to sink to the bottom of the "to-do" list. They can disappear from the lawyer's everyday radar screen. Sometimes these problems can fade in importance over time; sometimes they just get bigger.

Rather than waiting to find out whether the situation disappears or resurfaces as a PCC complaint or malpractice suit, a lawyer or client with a dispute involving a New Hampshire lawyer has an alternative: the NHBA's Dispute Resolution Committee (DRC), which is designed to handle those complaints that do not rise to the level of violation of the Rules of Professional Conduct. The committee handles all matters on a voluntary and, at first, informal, basis. The service can be used by clients and attorneys having fee disputes, or by attorneys with complaints against other lawyers, although the majority of issues currently handled are brought to the DRC by clients regarding their attorneys.

Typical complaints about attorneys handled by the DRC include: not returning phone calls, not keeping the client informed as to what is happening with his or her case, making excuses why the case is taking so long or not relinquishing a client's file after the client has dismissed the lawyer. The most common dispute, though, is over attorney's fees.

Attorney Melinda Gehris, who has served on the DRC for five years and is its current vice chair, said that the dispute resolution service helps attorneys address complaints as soon as possible, lessening the chance that the situation will escalate and result in a PCC complaint. (The Bar Association has begun the process of developing a program to supplement the DRC by contracting with a part-time or semi-retired attorney or legal professional with mediation skills to serve as an "ombudsperson" to provide additional assistance in helping divert disputes from the disciplinary process. See page 2 for an article on Association member services.)

"Dispute resolution is a valuable service available to Bar members. It significantly reduces the potential for disputes to take time and energy away from an attorney's practice of law. This service can eliminate substantially bigger problems." Gehris said.

The process for filing a complaint with the DRC is simple - and confidential. Complainants who first contact the PCC and then discover their complaints do not involve an attorney's violation of the Rules of Professional Conduct are referred to the DRC. The client or attorney must first put the complaint in writing and mail it to the Dispute Resolution Committee at the Bar Center. The subject of the complaint is then notified of the dispute and asked if he or she would like the Dispute Resolution Committee to assist in resolving the matter. The process is completely voluntary; if both parties do not agree to use the service, the DRC does not take up the complaint.

If both parties agree to utilize the dispute resolution service, NHBA Assistant Executive Director Denice DeStefano, the staff liaison to the DRC, assigns the complaint to a committee member. There are currently 22 members of the Dispute Resolution Committee, all of whom are trained mediators (most through the Superior Court Rule 170 mediation program) and arbitrators.

The member assigned to the case contacts both sides offering to assist in resolving the dispute, either informally or more formally (through mediation or arbitration). Often, a complaint is able to be resolved informally through the DRC member's simply having a candid conversation with the attorney in question. "Matters are often quickly and informally resolved by a committee member's suggesting, 'Hey, why don't you give this guy a call back' or something as simple as that," said Gehris.

But when the dispute is more serious - "I want a full copy of my file and my lawyer won't give it to me;" "I thought I'd get more in the settlement;" "I got a bill from my lawyer for $20,000 more than I thought I'd be charged" are some of the examples Gehris cited - the parties can agree to enter into formal mediation.

If the mediation is unsuccessful and both parties agree to take the next step, the case is re-assigned to a different DRC member for binding arbitration. Once the arbitrator makes a decision on the resolution of the complaint, the case is considered closed.

Once a case is closed, whether successfully mediated or not, closing correspondence is sent to all parties. Closed case files are kept for four years.

DeStefano and the DRC strive to answer complaints in a timely fashion. Once a written complaint is received and forwarded to the committee, it is assigned within five business days; the committee member assigned to it attempts to make initial contact within seven business days; and if no immediate response is received, the member follows up within five business days.

Gehris gave an example (without compromising confidentiality) of a recent complaint she handled involving contingency fees. After being assigned the case, she took about two days to pull everything together. She then had four telephone conversations with the client and four with the lawyer, and said she was "one phone call away from settling" the dispute. She estimated that the series of phone calls took about two to three hours in total. If the case had gone to arbitration, a hearing would have taken a half to a full day. "Our goal is to settle these disputes as quickly as we can," said Gehris.

Gehris estimates that about 80 percent of the cases the committee handles involve fee disputes. The most common fee dispute is over contingency fee agreements, in which the client agrees to pay an hourly rate before a settlement is reached, but then feels the rate is too high once the settlement is actually awarded. "It's typically just a case of the client's not understanding that this is going to happen in a contingency fee agreement. A lot of contingency fee disputes could be avoided by the attorney's giving the client a clear and accurate explanation of the contingency fee agreement," said Gehris.

According to Gehris, the majority of the complaints the committee receives are due to a simple lack of communication. "If we as attorneys could eliminate that problem, we'd be much less likely to end up with PCC complaints," she said.

In terms of numbers, the Dispute Resolution Committee has proven an oft-used service. During a recent 30-day sample period, DeStefano fielded 89 calls, mainly from dissatisfied clients. Only two of the 89 were from attorneys who wanted to initiate the dispute resolution process with a client - a typical ratio, according to DeStefano.

The Dispute Resolution Committee is extremely careful not to take up cases that involve the kind of misconduct that could be the basis for a PCC complaint. "As lawyers, we are ethically obligated to report to the PCC anything that rises to the level of violation of the Rules of Professional Conduct. The committee is very careful about adhering to that rule," said Gehris. "We take nothing that could be a PCC issue. If it's a gray area, we err on the side of caution and pass it along to the PCC."

Gehris considers the Bar's dispute resolution service an effective tool that she encourages attorneys to take advantage of when they find themselves in a dispute with a client or another attorney. Dealing with a less serious dispute early on, she said, can avoid more serious ones down the road. "A lot of disputes can be eliminated quickly and easily with a little communication with the help of a third-party neutral," said Gehris. "The Dispute Resolution Committee assists both lawyers and clients in settling disputes before they become issues brought before the PCC."

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