Alaska Bar R. 40

(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 electronically.

(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 ensure

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 service of the decision on 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 service 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 nonpayment as prescribed in Alaska

Bar Rule 61(c).