(a) Petition for Arbitration of Fee Disputes. Fee arbitration proceedings will be initiated by a client by filing a petition with the Bar Counsel on a form provided by the Bar. The petition will be in writing, signed by the client (hereinafter "petitioner"), seeking resolution of the fee dispute with his or her attorney (hereinafter "respondent"), and will contain the following: (1) a statement by the petitioner of the efforts made to attempt to resolve the matter directly with the respondent. (2) a statement by the petitioner that (s)he understands in filing the petition that the determination of the arbitrator or panel is binding upon the parties; that the determination may be reviewed by a superior court only for the reasons set forth in AS 09.43.120 through AS 09.43.180 or AS 09.43.500 through AS 09.43.595; and that the determination may be reduced to judgment; and (3) a statement of the dollar amount in dispute and the reasons in as specific language as possible, (s)he disputes the fee. (b) Petition Review. Bar Counsel will review each petition to determine if: (1) the petition is properly completed; (2) the petitioner has made adequate attempts to informally resolve the dispute, and; (3) the petition, in accordance with Rule 36(a)(4), should be denied. Bar Counsel may return the petition to the petitioner with an explanation if (s)he determines that the petitioner has not adequately attempted to resolve the dispute or if the petition is otherwise incomplete. The counsel will specify to the petitioner what further steps need to be taken by him or her to attempt to resolve the matter informally or what portions of the petition require additional clarification or information before the Bar will accept the petition. If Bar Counsel determines that the petition should be denied, (s)he will promptly notify the petitioner.
(c) Petition Accepted; Notification. If Bar Counsel accepts a petition, (s)he will promptly notify both the petitioner and the respondent of the acceptance of the petition and that the matter will be held in abeyance for a period of ten days in order for both parties to have the opportunity to settle the dispute without action by an arbitrator or panel or to request mediation under Bar Rule 13. The notice will include a copy of the accepted petition and will advise both parties that if the matter is not settled or mediation requested within the ten-day period that it will be set for arbitration. Further action on the petition will be stayed during mediation. If the dispute is resolved through mediation, the matter will be closed by settlement by the parties. If mediation is unsuccessful, the stay will be lifted and the matter set for arbitration. (d) Respondent Answer to Petition Required. Respondent shall respond to each of the allegations in the petition within 20 days of receipt of the notification that the petition has been accepted by Bar Counsel. Supporting documents may be submitted at that time. (e) Assignment to Arbitration, Dismissal for Failure to Proceed with Arbitration.(1) If, at the end of the ten-day period, Bar Counsel has not been informed that the matter has been settled or mediation requested, in accordance with Rule 37(c) or (e), (s) he will select and assign an arbitrator or arbitration panel from the members of the appropriate area division to consider the matter. (2) Bar counsel will contact the petitioner, the respondent, and the arbitrator(s) to determine their availability for hearing. If the petitioner fails to provide scheduling information within 30 days of the date of a written request, Bar Counsel shall transfer the matter to inactive status and notify the parties in writing that the petition will be dismissed unless the petitioner provides the information within 30 days of the date of the notice. If the petitioner fails to provide the information, Bar Counsel shall dismiss the petition without prejudice to refile subject to the jurisdictional limitations of Rule 34(c). Bar Counsel's initial written request to a petitioner for scheduling information must advise the petitioner that failure to respond may result in dismissal of the petition. (f) Notice of Arbitration Hearing. Bar Counsel will, at the time the arbitrator or arbitration panel is assigned, and at least twenty days in advance of the arbitration hearing, mail written notice of the time and place of the hearing to the petitioner and respondent. The notice of arbitration hearing will indicate the name(s) of the arbitrator or panelists assigned to hear the matter and will advise the petitioner and respondent that they are entitled to: (1) be represented by counsel, at his or her expense; (2) present and examine witnesses; (3) cross-examine opposing witnesses, including examination on a matter relevant to the dispute even though that matter was not covered in the direct examination; (4) impeach a witness, regardless of which party first called the witness to testify; (5) present documentary evidence in his or her own behalf; (6) rebut the evidence presented against him or her; (7) testify on his or her own behalf, although even if a party does not testify on his or her own behalf, (s)he may be called and examined as if under cross-examination; (8) upon written request to the arbitrator or chair of the panel, and for good cause shown, have subpoenas issued in his or her behalf, as provided in Rule 37(i)(3); (9) upon written request to the arbitrator or chair of the panel, and for good cause shown, request prehearing discovery; (10) challenge peremptorily and for cause any arbitrator assigned, as provided in Rule 37(g) and (h); and (11) have the hearing recorded on tape. (g) Continuances; Adjournments. Continuances will be granted only for good cause and when absolutely necessary. An application for continuance will be made to the arbitrator or panel chair. Application must be made at least ten days prior to the date for hearing unless good cause is shown for making the application for continuance subsequent to that time. Nothing in this section, however, will preclude an arbitrator or arbitration panel from adjourning an arbitration hearing from time to time as necessary, for good cause shown, at the request of either party. (h) Telephonic Hearings. A party may appear or present witness testimony at the hearing by telephonic conference call. The costs of the telephone call will be paid by the party unless the Bar, in its discretion, agrees to pay the costs. (i) Arbitration Without Hearing. If both parties, in writing, waive appearances at an arbitration hearing, the matter may be decided on the basis of written submissions. In such case, Bar Counsel will give each party suitable time to present his or her case in writing and to respond to the assertions of the other. If the arbitrator or panel, after reviewing the written submissions, concludes that oral presentations by the parties are necessary, a hearing will be scheduled; otherwise, the arbitrator or panel will render the decision on the basis of the written submissions. (j) Written Evidentiary Submissions Allowable. Either the petitioner or the respondent may submit a written statement under oath in lieu of or in addition to presenting evidence at the arbitration hearing. Such written statements must be filed with Bar Counsel at least ten days prior to the date set for hearing. The other party may, within three days prior to the hearing date, respond to the party's written statement. The other party may also require the party filing the written statement to appear at the hearing or be available by telephone conference call and be subject to cross-examination, in which instance notice of the intention to cross-examine must be filed with Bar Counsel, and served upon the party whose presence is required within five days prior to the hearing date. Such notice must be made in good faith and not made with an intention to cause delay or inconvenience. The arbitrator or panel may award expenses of appearance if it determines that the notice of intention to cross-examine was filed solely for the purpose of causing delay or inconvenience. (k) Affidavit Submissions. Either the petitioner or respondent may submit written affidavits by witnesses on their behalf in lieu of or in addition to presenting evidence at the arbitration hearing. Such affidavits must be filed with Bar Counsel and served on the other party at least ten days before the date set for the hearing. The other party may require the witness filing the affidavit to appear at the hearing or be available by telephone conference call and be subject to cross-examination, in which instance notice of the intention to cross-examine the witness must be filed with the Bar Counsel and served on the party on whose behalf the witness would appear, within five days prior to the hearing date. Such notice must be made in good faith and not made with an intention to cause delay or inconvenience. The arbitrator or panel may award expenses of appearance if it determines that the notice was filed solely for the purpose of causing delay or inconvenience. It will be the responsibility of the party on whose behalf the witness is appearing or giving telephonic testimony to insure the availability of that witness. (l) Appearance. Appearance and non-objection by a party to the dispute at a scheduled arbitration hearing will constitute waiver by that party of any deficiency with respect to the giving of notice of the arbitration hearing. (m) Failure of a Party to Appear. In spite of the failure of either party to appear at the scheduled arbitration hearing for which they were provided notice, the arbitrator or panel will proceed with the hearing and determine the dispute upon the basis of the evidence produced. If neither party attends, the arbitrator or panel may terminate the arbitration by deciding that neither party is entitled to any relief. (n) Evidence. The arbitration hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence will be admitted if it is the sort of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule to the contrary. Irrelevant and unduly repetitious evidence will be excluded. (o) Attorney-Client Privilege. The rules of privilege are effective to the same extent that they are recognized in a civil action, except that the respondent may reveal confidences or secrets of the client to the extent necessary to establish his or her fee claim. (p) Subpoenas and Discovery; Costs. In accordance with Rule 37(i)(3) and subparagraph (f)(8) of this rule, an arbitrator will, for good cause shown, issue subpoenas and/or subpoenas duces tecum (hereinafter "subpoenas") or authorize prehearing discovery at the written request of a party. The cost of the service of the subpoena and the transportation of the witness shall be borne by the party requesting the subpoena to be issued. Any person subpoenaed by an arbitrator or the chair of a panel or ordered to appear or produce writings or respond to discovery who refuses to appear, give testimony, or produce the matter(s) subpoenaed or requested is in contempt of the arbitrator or arbitration panel. The arbitrator or panel chair may report such contempt to the superior court for the judicial district in which the proceeding is being conducted. The court shall treat this in the same manner as any other contempt. The refusal or neglect of a party to respond to a subpoena shall constitute cause for a determination of all issues to which the subpoenaed testimony or matter is material in favor of the non-offending party, and a final decision of the arbitrator or panel may be based upon such determination of issues. (q) Decision of the Arbitrator or Arbitration Panel. The arbitrator or arbitration panel will issue its decision within thirty (30) days of the close of the arbitration hearing. If the matter is determined to be a "complex arbitration" under Alaska Bar Rule 34(h), the decision will be issued within ninety (90) days. If a delay is expected, the panel chair or single arbitrator will submit to bar counsel a written explanation of the delay, before expiration of the time allowed for the decision. Bar counsel will forward the explanation to the parties. The decision will be based upon the standards set forth in these rules and the Alaska Rules of Professional Conduct. The decision will be in writing and need not be in any particular form, unless a form is approved by the executive committee; however, the decision will include: (1) a preliminary statement reciting the jurisdictional facts, including that a hearing was held upon proper notice to all parties and that the parties were given the opportunity to testify, cross-examine witnesses, and present evidence; (2) a brief statement of the dispute; (3) the findings of the arbitrator or panel on all issues and questions submitted which are necessary to resolve the dispute; (4) a specific finding as to whether the matter should be referred to bar counsel for appropriate disciplinary proceedings; and (5) the award, if any. The original of the decision shall be signed by the arbitrator or members of the arbitration panel concurring in the decision. A separate dissent may be filed. The award may provide for payment in installments. Pre-judgment interest may be awarded. Attorney's fees for arbitration may not be awarded. The arbitrator or the panel chair will forward the decision, together with the file and the record, to bar counsel who will then serve a copy of the signed decision on each party to the arbitration.
(r)Confidentiality. All records, documents, files, proceedings and hearings pertaining to the arbitration of any dispute under these rules will be confidential and will be closed to the public, unless ordered open by a court upon good cause shown, except that a summary of the facts, without reference to either party by name, may be publicized in all cases once the proceeding has been formally closed. Bar counsel may utilize arbitration records and decisions for statistical and enforcement purposes and for disciplinary purposes following acceptance of a grievance under Rule 22(a) or referral by the arbitrator or arbitration panel under Rule 40(q)(4).(s) Modification of Decision by the Arbitrator or Panel. On application to the arbitrator or panel by a party to a fee dispute, the arbitrator or panel may modify or correct a decision if: (1) there was an error in the computation of figures or a mistake in the description of a person, thing, or property referred to in the decision; (2) the decision is imperfect in a matter of form not affecting the merits of the proceeding; or (3) the decision needs clarification. An application for modification shall be filed with bar counsel within twenty days after delivery of the decision to the parties. Written notice of the application for modification will be served promptly on the opposing party, stating that objection to the application must be served within ten days from the receipt of the notice of the application for modification. A decision on an application for modification will be issued within thirty (30) days after the time for filing an objection.
(t) Confirmation of an Award. Upon application of a party, and in accordance with the provisions of AS 09.43.110 and AS 09.43.140 or AS 09.43.490 and AS 09.43.520, the court will confirm an award, reducing it to a judgment, unless within ninety days either party seeks through the superior court to vacate, modify or correct the award in accordance with the provisions of AS 09.43.120 through 140 or AS 09.43.500 through 520. (u) Appeal. Should either party appeal the decision of the court concerning an arbitration award under the provisions of AS 09.43.160 or 09.43.550, the party must serve a copy of the notice of appeal upon bar counsel. If a matter on appeal is remanded to the arbitrator or panel, a decision on remand will be issued within thirty (30) days after remand or further hearing. (v) Suspensions for Nonpayment of an Award. Failure to pay a final and binding award will subject the respondent attorney to suspension for non-payment as prescribed in Alaska Bar Rule 61(c). Old Rule 40 [SCO 176 as amended by SCO 470] deleted and new Rule 40 added by SCO 780 effective 3/15/1987; amended by SCO 888 effective 7/15/1988; by SCO 962 effective 7/15/1989; by SCO 1045 effective 1/15/1991; by SCO 1052 effective 1/15/1991; by SCO 1147 effective 7/15/1994; by SCO 1249 effective 7/15/1996; by SCO 1314 effective 7/15/1998; by SCO 1373 effective 4/15/2000; and by SCO 1547 effective 10/15/2004; and by SCO 1669 effective 4/15/2008