The New Hampshire Bar Association Dispute Resolution Committee is designed to handle, first on an informal basis, those disputes against/between attorneys that do not rise to the level of an ethical violation of the Rules of Professional Conduct. Examples of such disputes include those where an attorney is not returning phone calls, is not keeping the client informed as to what is happening with their case, is making excuses why their case is taking so long, will not relinquish a client’s file if the attorney has been dismissed, questions and/or disputes involving fees, etc.
The process is simple: the client or the attorney(s) must put their dispute in the form of a letter and direct it to the NHBA Dispute Resolution Committee at the Bar’s address. The attorney(s) or the client will be notified of the dispute by a member of the Committee and asked if he/she would like the Committee to assist in resolving the dispute. The Bar Association has no authority to mandate an attorney or a client participate in this process; it is voluntary on the part of the individual.
If someone is unclear as to whether his or her particular dispute is a rule violation, the individual should be directed to the PCC to make that determination. If the problem is not a violation of the Rules of Professional Conduct then the individual may choose to seek the assistance of the NHBA Dispute Resolution Committee in attempting to resolve the dispute.
An incoming dispute is forwarded by the staff liaison to the Committee Chair. The Committee Chair assigns the matter to a committee member by forwarding the correspondence with a cover letter, within 3-5 business days. The volunteer assigned the dispute sends a letter to the individual filing the dispute and to the other parties involved in the dispute within 7 business days, offering to assist in a resolution, either informally or more formally through mediation or arbitration. The assigned volunteer will follow-up with a phone call to the individual in question in 3-5 days, if no response has been received (sometimes a candid phone conversation between colleagues is most beneficial). If a resolution can be reached informally at this level with the assigned volunteer’s assistance the dispute should be resolved and the case closed – regardless of the nature of the dispute (rule violations excepted).
If either individual contacted by the volunteer responds (either in writing or in a phone conversation) that he/she is interested in participating in a formal mediation to resolve the dispute the appropriate forms, with a cover letter, will be mailed to both parties asking their agreement to mediate. At this point the required forms, releases, signatures, etc. can be obtained and the formal process begun.
If either individual contacted by the volunteer responds (either in writing or in a phone conversation) that he/she is not interested in participating in an amicable resolution then the person filing the dispute should be advised of this fact in writing, with a copy sent to the other involved parties, and the case closed.
If mediation is requested, both parties have 30 days in which to return the required forms. 10 days prior to the 30-day deadline a reminder notice will be sent to one, or both parties, advising them they have 10 days in which to return the required forms or this matter will be closed and is not subject to being reconsidered by this Committee. If the forms are not returned, a letter is sent to the party initiating the process (copied to the other party) advising them that the time period for following through on the request for mediation has passed and the case is now closed.
If the required forms are signed and returned within the deadline, the assigned volunteer can proceed with the mediation. The mediation can either be by phone or by meeting. Once mediation is completed, the mediator sends a letter to the staff liaison (copied to the parties involved) and the file is closed.
If mediation is unsuccessful, the parties are asked by the mediator to consider binding arbitration. If both parties agree they again have 30 days in which to return the required forms necessary to commence binding arbitration. 10 days prior to the 30-day deadline a reminder notice will be sent to one, or both parties, advising them they have 10 days in which to return the required forms or this matter will be closed and is not subject to being reconsidered by this Committee. If the forms are not returned, a letter is sent to the individual initiating the dispute (copied to the other party) advising him or her that the time period for following through on binding arbitration has passed and the case is now closed.
If the required forms are signed and returned within the deadline the assigned committee member can initiate an arbitration hearing. One or more hearings may be needed and one or a panel of arbitrators must be appointed, meeting(s) scheduled and a decision reached.
Once arbitration is completed, the report is prepared by the arbitrator/panel and forwarded to the parties involved, with an original and two copies to the staff liaison.
The procedures established by these rules are intended to provide a choice of mechanisms for resolving professional and economic disputes which are speedy, private and cost effective. It is hoped these procedures will benefit the judicial system, the public and the profession by preventing additional burdens on an already overburdened court system.
Confidentiality and Immunity
All inquiries and all proceedings, whether mediation or arbitration, shall be confidential and all communications between the Association, the parties and the mediator(s) or arbitrator(s) shall be privileged and not subject to discovery or production in any other forum or for any other purpose.
The parties, mediator(s), arbitrator(s) and Association shall use their best efforts to keep confidential the existence of any dispute and any proceedings, and in the event of judicial proceedings relating to such mediation or arbitration, or enforcement of the arbitration award, shall cooperate to have the record of such arbitration proceedings sealed.
Mediators, arbitrators, the New Hampshire Bar Association, its officers, employees, members and designees shall have the same immunity from civil suit or claim in connection with any conduct or actions under the mediation and arbitration procedures described under these rules that a judicial officer or body would have in a court proceeding.
Records, documents, files, proceedings and hearings pertaining to disputes handled under these rules shall not be disclosed to persons who are not parties to the dispute. Provided, however, that:
- All such information shall be routinely available to Committee members for purposes of their work on this Committee;
- The Committee may be compelled to submit information to the New Hampshire Supreme Court’s Professional Conduct Committee in response to a specific inquiry from that committee and otherwise shall be compelled to disclose information to the Professional Conduct Committee pursuant to Professional Conduct Rule 8.3(a).
- The Committee may disclose information concerning a particular case under circumstances which protect the identity of the parties (e.g., by releasing an arbitrator’s decision from which the names of the parties and similar identifying information have been omitted); and
- The Committee may compile and disclose statistical information concerning the nature and number of disputes handled during certain time periods under circumstances which do not reveal the names of parties to particular cases.
- Except as provided in subsection 2), below, the Committee shall have jurisdiction over any request for resolution of a dispute rendered by a client (either current or prior) or an attorney licensed to practice in this state. Such a request can be filed by either the client or the attorney and shall be referred to as a “dispute.” The person filing the dispute shall be referred to as the “Initiator” and the other party shall be referred to as the “Respondent.”
- The Committee shall have no authority over:
- a. Any dispute which was the subject of an action pending in any court at the time the dispute was filed with the Committee unless the matter was referred to the Committee by the court in question; or
- b. Any dispute concerning a fee set by statute, rule or order of a court or other tribunal.
Members of the Committee acting as mediators or arbitrators and non-committee members who participate in arbitration panels are performing quasi-judicial functions on a voluntary basis at the request of the initiator and respondent. Such quasi-judicial functions are immune from civil liability actions. Persons who avail themselves of the Committee’s services are deemed to have waived any claim for damages relating to actions taken by mediators and arbitrators which are within the scope of these procedures.
- 1. Notice of a dispute concerning a lawyer’s conduct or other aspect of an attorney-client, attorney-attorney relationship originates with a written communication to the New Hampshire Bar Association Dispute Resolution Committee/Staff Liaison.
- 2. Written notices of disputes must contain the following information: the name of the people/person who is involved in the dispute; the name of any attorney involved in the dispute and their role, including opposing counsel, if any; an indication of whether there is a court case pending; and a clear statement of the nature of and facts surrounding the dispute.
- 3. Notices which appear to the Staff Liaison to constitute a violation of the New Hampshire Rules of Professional Conduct will be returned to the party which initiated the process with a letter advising them that the New Hampshire Supreme Court Professional Conduct Committee is the disciplinary entity that investigates possible ethical violations by attorneys.
- 4. A letter referring the notice of dispute to the Chair of the Committee will be processed within three business days of receipt by the Staff Liaison, for assignment to a committee member. Members shall be assigned by the Committee Chair to participate in the mediation of disputes. Members shall be assigned in rotation, but no member shall be required to accept a case if the member believes his or her involvement would create a conflict of interest, violate a rule of the Committee or create an impression of unfairness towards either party.
- 5. The assigned Committee member should communicate with the party initiating the process within seven business days of receipt of the referral from the Bar Association, elicit the facts and attempt to resolve the matter. A notice of dispute which is without merit on its face should be disposed of by the Committee member within the seven business day time frame. Notice to the attorney who is involved in the dispute should be provided by the assigned Committee member within seven business days of receipt, if possible.
- 6. The assigned Committee member handling the dispute can facilitate a resolution of the matter by conference or other telephone calls, in-person meetings, written correspondence or in any other appropriate manner.
- 7. Copies of all correspondence related to a notice of dispute must be sent to the Staff Liaison for the files by the assigned Committee member, with a copy to the party initiating the process and the others involved in the dispute. Correspondence should set out how the dispute has been resolved, whether more time is needed to attempt a resolution, whether the matter is to be formally mediated or that the dispute can not be resolved. Further correspondence should be made as needed, but should be made at least in 30-day intervals until the matter is concluded.
- 8. If mediation is requested, both parties have 30 days in which to return the required forms. 10 days prior to the 30-day deadline a reminder notice will be sent to one or both parties, advising them they have 10 days in which to return the required forms or this matter will be closed and is not subject to being reconsidered by this Committee. If the forms are not returned, a letter is sent to the party initiating the process (copied to the other party) advising them that the time period for following through on the request for mediation has passed and the case is now closed.
- 9. If any party to the dispute refuses to participate, all parties shall be so notified and the matter will be closed.
- 10. Referrals from the Dispute Resolution Committee may be made to any other program within the Bar Association or other appropriate entities.
- 1. The mediation process shall ordinarily be completed within 90 days from the date of the letter assigning the dispute to the Committee member.
- 2. Copies of all correspondence sent by the assigned member to a party shall be sent to the Committee’s Staff Liaison and the other party.
- 3. The assigned member shall request such additional information from both parties as may be reasonably necessary to promote an understanding of the issues by all parties and to produce a meaningful compromise of the dispute. The assigned member may use the client’s release to obtain the attorney’s complete file whenever examination of the file would be helpful to the Committee member or to the parties, but examination of the attorney’s file is not a mandatory procedure. Use of the client’s release form is a matter reserved to the sound discretion of the Committee member.
- 4. The assigned member shall strive to effectuate a voluntary settlement within 30 days after first contacting the parties, and shall, in any event, reduce the last known position of each party to writing within that period of time by sending a letter to the parties involved.
- 5. Any client matters that are not settled in mediation are eligible for arbitration. If mediation efforts do not produce a voluntary resolution of the dispute within 30 days, the assigned member shall write to the parties and request an election to either accept any pending settlement offer, submit a signed Consent to Binding Arbitration form to the member, or discontinue mediation. Copies of the Consent to Binding Arbitration form and RSA 542 shall be enclosed with the letter.
- 6. If both parties agree to arbitrate, the assigned member shall promptly forward the entire file to the Committee Chair and simultaneously notify the parties that the matter will henceforth be governed by the arbitration provisions set forth in the next part of these Procedures.
- 7. If the case has special features which would make it inappropriate to assign an arbitrator who is a member of the Dispute Resolution Committee, the assigned member may set forth his or her reasons (and choice of arbitrators) in a written request to the Committee Chair. The Committee Chair shall decide whether to select an arbitrator who is not a committee member.
- 8. If either party declines to return the Consent to Binding Arbitration form within the time period specified by the assigned member, the assigned member shall write both parties and advise them that the Committee can take no further action to resolve the dispute and advise the parties the case will be closed.
- 1. The parties, by signing a Consent to Binding Arbitration form, enter into an agreement to arbitrate and further agree to incorporate this Committee’s arbitration procedures as part of their agreement.
- 2. Arbitrations shall be subject to the provisions of RSA Chapter 542. The arbitrator shall be vested with all the quasi-judicial powers and immunities, and shall assume all the duties conferred upon arbitrators by RSA Chapter 542.
- 3. Arbitration hearings shall be conducted as administrative adjudications governed by RSA Chapter 541-A and are not subject to the formal rules of evidence and procedure used in the superior court.
- 4. The burden of proof in arbitration shall be upon the initiator unless it concerns an attorney/client fee dispute in which case the attorney shall have the burden of proof. The burden of going forward with the evidence shall ordinarily be upon the initiator as well. The burden of going forward may be shifted by the arbitrator in his or her discretion when warranted by the circumstances of the case except in fee dispute cases where the attorneys share the burden of going forward.
- 5. Any person may be summoned to appear before the arbitrator as a witness by serving a subpoena in the manner provided for legal actions, and the fees for such attendance shall be the same as fees for witnesses in the superior court.
- 6. If all parties agree, they may waive oral hearing and may submit their contentions in writing, together with exhibits, to the assigned arbitrator, who may then determine the controversy on the basis of the documents presented. The arbitrator may, however, after due notice to all parties, require oral testimony from any party or witness.
- 7. The assigned arbitrator shall schedule a hearing for a date certain within 45 days after receiving the case. The parties shall attempt to accommodate the assigned arbitrator’s hearing schedule and shall respond to any prehearing requests for the submission of witness lists, premarked exhibits, or similar information, including attendance at a prehearing conference.
- 8. The arbitrator shall mail the parties a written notice which identifies all participating arbitrators, states the date, time and place of the hearing, advises the parties of their right to counsel, and contains such other information as may be necessary or appropriate under the circumstances of the case. This notice shall be mailed, first class postage prepaid, at least ten days before the hearing. Appearance at a scheduled hearing shall constitute a waiver of any deficiency with respect to notice of those issues which are specified in the arbitrator’s written notice.
- 9. Two members of a three-member arbitration panel must agree upon a final decision or award in order for the decision or award to be valid. If any member of a three-member panel becomes unable to act during the pendency of the arbitration request, the proceedings shall be declared void and the matter reassigned to a new panel, unless all parties consent in writing to proceed with one of the remaining panel members as a sole arbitrator and agree upon the identity of that member.
- 10. If any of the assigned members of a three-member arbitration panel are absent from any hearing in which evidence is to be introduced, the case shall be rescheduled unless all parties consent in writing to proceed with one member of the panel as the sole arbitrator and agree upon the identity of that member.
- 11. Any party to an arbitration has the right to be represented by an attorney at any stage of the proceeding. But, after having been given a reasonable opportunity to obtain counsel and neglecting to do so, a party may not unduly delay the arbitration by seeking a postponement because he or she wishes to be represented.
- 12. Any party may arrange to have a record made of the proceeding provided that:
- a. the requesting party bears the entire expense of making the record;
- b. the requesting party notifies the arbitrator and the other party that a record will be made at least five days before the hearing date; and
- c. the requesting party adheres to the arbitrator’s instructions establishing fair and reasonable procedures governing the preparation of the record and the distribution of copies to the opposing party and the arbitrator.
- 13. Adjourned dates for the continuance of any hearing which cannot be completed on the day scheduled shall be fixed for such times and places as the arbitrator may select with due regard for the circumstances of the parties and the desirability of speedy determination. Upon request of a party showing good cause, or upon his or her own motion, the arbitrator may postpone an evidentiary hearing or any other stage of the arbitration proceeding.
- 14. If, after being duly notified, a party fails to appear at the hearing, the arbitrator may:
- a. continue the hearing;
- b. enter a default judgment against the absent party; or
- c. hear and determine the controversy upon the evidence produced, notwithstanding such failure to appear, and enter a binding award.
- 15. The chair of a three-member arbitration panel shall preside at the hearing and rule on the admission and exclusion of evidence and on all questions of procedure.
- 16. The testimony of witnesses shall be given under oath and the arbitrator shall arrange for the administration of oaths to any witnesses testifying at the hearing.
- 17. The arbitrator shall confirm all parties have received a copy of RSA Chapter 542.
- 18. The arbitrator shall prescribe the order of proof and may allow opening or closing statements as a matter of discretion.
- 19. Before closing the hearing, the arbitrator may expressly inquire whether the parties have further evidence to submit, and shall establish a date certain for the filing of such further evidence as is determined to be admissible. The arbitrator may also establish a date certain for the submission of legal memoranda if requested by the parties or by the arbitrator.
- 20. Before closing the hearing, the arbitrator shall announce the date when the record shall be closed. The decision shall be made, reduced to writing and served (by mail) upon the parties within 20 days from the date the record was closed.
- 21. The final decision shall be signed by the arbitrator (including all members of a three-member panel). If there is a dissent, it shall be signed separately, but the award shall be binding if signed by the majority of a three-member panel.
- 22. The record may be reopened on the application of a party or upon the arbitrator’s own motion at any time before the decision is served. The parties may petition for reconsideration of the arbitrator’s decision within 10 days from the date it is served. Action shall be taken on such petitions within 10 days and modifications shall be made in the arbitrator’s original decision only for the purpose of correcting obvious errors of fact or law or to consider new and material evidence which could not have been previously known to the proffering party through the exercise of reasonable diligence.
- 23. Unless otherwise agreed by the parties, the arbitrator may grant any remedy or relief customarily awarded in legal actions based upon personal service contracts. The award may include a direction for the payment of the prevailing party’s expenses related to the arbitration proceeding, but not for legal fees or for expenses incurred by the arbitrator.
- 24. At any time before the service of the arbitrator’s decision, the parties may agree upon a settlement of their dispute. Once a settlement agreement is signed and filed with the arbitrator, the arbitration shall be dismissed and may not be reopened.
- 25. In the event of the death or incompetence of a party prior to the close of the record, the proceeding shall be suspended for 90 ninety days and then shall be closed. The parties may agree to reopen the matter with the Committee. Either party may then proceed to the proper court to seek such relief as may be warranted. In the event of death or incompetence of a party after the close of the record, but prior to a decision, the decision rendered shall be binding upon the heirs, administrators or executors of the deceased and on the estate or guardian of the incompetent.
- 26. The arbitrator’s decision need not be in any particular form, but must include findings of fact and conclusions of law sufficient to support the result reached. In general, a decision shall consist of a preliminary statement reciting jurisdictional facts and background information, the issues presented, the position of the parties, a discussion of the arbitrator’s reasons for accepting or rejecting the various factual and legal arguments presented, the relief awarded.
- 27. The arbitrator shall serve a copy of the decision upon each of the parties. The original and two additional copies of the arbitrator’s decision shall be placed in the case file and the arbitrator shall immediately forward the entire file to the Committee’s Staff Liaison. The Staff Liaison shall distribute copies of the decision to the other members of the Committee.
- 28. An award rendered by an arbitrator may be enforced by the superior court consistent with the provisions of RSA 542:8.
These rules may be amended or modified by the New Hampshire Bar Association at anytime and from time to time. The New Hampshire Bar Association may at anytime and from time to time adopt and amend regulations, supplementing these rules or otherwise regulating any aspects of the arbitration procedure.