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HomeMy WebLinkAboutKean & Bean, P.C. SUFPo(,o RESOLUTION 2024-145 ADOPTED D D: OC I 19958 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2024-145 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 13,2024: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Albert J. Krupski, Jr.,to execute a Retainer Agreement with Kean& Bean,P.C., in connection with professional services provided on labor relations and employment law matters from January 1, 2024 through December 31, 2026. Retainer fee of$64,000.00 per year payable in monthly installments. A.1420.4.500.200. Denis Noncarrow Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Greg Doroski, Councilman SECONDER:Brian O. Mealy, Councilman AYES: Doroski,Mealy, Smith,Krupski Jr, Doherty, Evans C ot RECEIVED o FEB 16 2024 tial �a�� SoUthold Town Clerk Office of the Town Attorney Town of Southold Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone : 631-765-1939 Facsimile: 631-765-6639 MEMORANDUM To: Denis Noncarrow, Town Clerk From: Missy Mirabelli Secretary to the Town Attorney Date: February 16, 2024 Subject: Agreement Between Town of Southold and Keane & Beane, PC With respect to the above-referenced matter, I am enclosing an original, fully executed Agreement for your records. If you have any questions regarding the enclosed, please do not hesitate to call me. Thank you. /mm Enclosures CC:Accounting t N Westchester H Long Island �?(,KEANEMBEANE . 445 Hamilton Avenue 534 Broadhollow Road ATTORNEYS AT LAW Suite 1500 Suite 130 White Plains,NY 10601 Melville,NY 11747 Phone 914.946.4777 Phone 631.776.5910 N Mid-Hudson 6 New York City 200 Westage Business Center 60 Last 42nd Strcet Suite 810 rishkill,NY 12524 New York,NY 10165 Phone 845.896.0120 Phone 646.794.5747 January 31,2024 VIA E-MAIL <al.krupski&town.southold.ny.us> RICHARD R. ZUCRERMAN Hon.Al Krupski Principal Member Supervisor rzuckerman@kblaw.com Town of Southold Direct 631.776.5912 Town Hall, 53095 Main Road, P.O. Box 1179 Southold, NY 11971 Re: Retainer Dear Supervisor Krupski: Thank you for your and the Town's interest in our retention as the Town's labor, employment,personnel and human resources law counsel. This letter will confirm the scope and terms of our representation and will ensure that we have a clear understanding of these matters from the outset. 1. Scope of Engagement The scope of this representation will include serving as the Town's counsel for all labor, employment,personnel and human resources law matters for the period January 1, 2024 through December 31,2026. The scope of our engagement may change if the Town asks the Firm to provide different services, and the Firm agrees in writing to provide them or the Firm proceeds to provide them and bills the Town for them. If the Firm's engagement changes, the terms set out in this letter will apply to the changed engagement unless the Firm sends the Town a further letter modifying or superseding this one. 2. The Client's Duty to Cooperate The Town understands and agrees that,in order for the Firm to represent it effectively,it is necessary for the Town to assist and cooperate with the Firm. The Town agrees to: (a) make itself(including principals and employees,if applicable) available to discuss issues as they arise in this matter,and to make decisions regarding the matter when necessary; (b) attend and participate in meetings, conferences, preparation sessions, court and administrative proceedings and other activities in connection with the representation; (c) provide complete and accurate information and WWW.KBLAW.COM p Tom' /{� ��@��'�y �"�E/`'�M�RELEEP.C. ATTORNEYS AT LAW Town of Southold January 31,2024 Page 2 documents to the Firm on a timely basis; and (d) pay the Firm's invoices on a timely basis as provided herein. 3. Responsibility and Team Members Alyssa L. Zuckerman and I will be the partners primarily responsible for handling the Town's matters. As appropriate, the Firm will draw upon the talent and skills of other attorneys in the Firm and may also assign legal assistants to the Town's matters. 4. Keeping You Informed The Firm is committed to keeping the Town informed about our work on any matters assigned to us. This includes letting the Town know who is working on those matters, updating the Town on the status of the matters, advising the Town of any potential problems or delays, and keeping the Town notified of costs. The Firm will provide the Town with a report on the status of matters assigned to us as regularly as the Town requires. In the event that the Town needs to reach one of our attorneys and the person sought is unavailable,please leave a message describing the nature and urgency of the inquiry. It is the Firm's policy to promptly respond to all inquiries. 5. Fees, Expenses and Billings (a) Legal Fees The Town will be billed by the Firm on the basis of hourly rates multiplied by the number of hours worked on its matters in 15-minute increments (ie., four 15- minute units per hour). The Firm will /charge for all services rendered in connection with a particular matter including,but not limited to,legal research, drafting, telephone calls and emails, conferences, court and administrative appearances,trials and hearings, litigation support, e-discovery services and other proceedings. Our services also many include the creation and maintenance of status reports that enable us to monitor the progress of the matter for which representation is being provided. Notwithstanding our normal fee schedule,we have agreed to a retainer arrangement that will include our professional services on all labor, employment, personnel and human resources law matters (except as set forth below) on which we are consulted,including one round of collective bargaining negotiations with each of the CSEA and PBA units,including (as relevant) mediation, fact finding,interest arbitration and drafting of the collective bargaining agreements with these Units, T KEANEFASEANEPC. ATTORNEYS AT LAW Town of Southold January 31,2024 Page 3 consultation on the administration of the collective bargaining agreements and responses to any grievances (before filing for arbitration) and attendance at related meetings on an as-needed basis. Excluded from the retainer will be administrative hearings, arbitrations and other litigation,personnel matters involving individual employees,personnel investigations, threatened pre-litigation matters that are not,in the joint opinion of our Firm and the Town Attorney,routine issues otherwise covered by the retainer, and collective bargaining with any newly established units not listed above. The fee for this retainer will be $64,000 for the period January 1,2024— December 31, 2024; $64,000 for the period January 1,2025—December 31, 2025; and $64,000 for the period January 1, 2026—December 31,2026;payable in equal advance monthly installments. If requested to represent the Town for administrative hearings, arbitrations, other litigation or other matters outside of the scope of the retainer as defined above, we will bill $350 for Richard K. Zuckerman's time, $330 per hour for another partner's or counsel's time, $280 for an associate attorney's time,and$150 per hour for recent law graduates, legal interns, summer associates and paralegal assistants' time. Effective July 1,2024, the hourly rate for another partner's and counsel's time will be$335 per hour and, for an associate attorney's time, $285 per hour. These rates do not include any amounts that may be added to a particular invoice for disbursements and charges. These rates are subject to periodic adjustment. In the case of partners and counsel, adjustment usually occurs in January of each year;in the case of associates, adjustment usually occurs when they step up to the next level of seniority year. (b) Disbursements and Charges The Town will be responsible for disbursements and charges incurred in the matters that are beyond the Firm's general office-related expenses.These disbursements and charges may include,but are not limited to, filing fees,hand deliveries, overnight courier services,travel expenses and computer research. Invoices from third-party vendors may be sent to the Town for direct payment to the vendors. We will not charge for day-to-day photocopying, domestic telephone calls,postage costing less than $1 or facsimiles. ATTORNEYS AT LAW Town of Southold January 31, 2024 Page 4 (c) Billing Arrangements Statements of fees, disbursements and charges will be sent to the Town on a monthly basis,with payment to be made upon receipt of the invoice. The Firm reserves the right to impose a late charge at the rate of 12%per annum on past due accounts. If the Town anticipates that payment will be delayed,please discuss this delay with me at the earliest possible opportunity. If the Town has any questions regarding an invoice,please contact me so that I may try to promptly answer them. 6. Communication Technology We are mindful of our obligation to safeguard our clients' proprietary, sensitive, or otherwise confidential information. It is, therefore,important that we agree on the kinds of communication technology that will be employed in the course of this engagement. If there are particular forms of communication technology that the Town does not wish us to use, or if there are other specific safeguards that the Town would like us to put in place,please promptly advise us. If the Town does not so advise us,we will assume that the Town has given consent to, and accepted any risks attendant upon, the use of any means of communication that we deem to be appropriate including, but not limited to, cell phones, electronic mail and facsimiles. 7. Files The Firm generally retains clients' files in paper or electronic form for at least seven years after conclusion of the matter for which representation was provided. However, once the matter has been concluded, the Town may take possession of the files at any time by delivering a written and signed request to the Firm. If,upon the expiration of seven years after conclusion of the matter,no request has been received, the Firm reserves the right to destroy/purge the files without further notice to the Town. 8. Questions and Termination The Firm has procedures to address any issue that the Town would like to raise, and we encourage the Town to inform us if at any time our services do not meet your expectations. We will strive to promptly address any problem and in a professional manner. The Town may end this relationship at any time by giving the Firm written notice, subject to its obligation to pay us according to the terms of this Agreement. EAE EA ` ERC. ATTORNEYS AT LAW Town of Southold January 31, 2024 Page 5 The Firm,in turn,may withdraw from the representation upon written notice in the event that the Town fails to cooperate with us in any way that we may reasonably request, the Town fails to pay our invoices in full as submitted, or we determine in our reasonable discretion that it would be improper pursuant to the New York Rules of Professional Conduct or impractical to continue our relationship. 9. Resolution of Disputes—Arbitration Although the Firm does not expect that differences will arise between us,we recognize that disagreements can happen. It is, therefore,wise to agree upon a procedure for fairly and expeditiously resolving them. Accordingly,if we have an unresolved disagreement arising out of or relating to our billed fees, disbursement or charges, then that disagreement will be submitted to private,confidential binding arbitration as follows: (a) Arbitration Pursuant to the New York Fee Dispute Resolution Program In the event that a dispute arises regarding the Firm's billed fees, disbursements or charges, then the Town and the Firm ("the Parties') will resolve the fee dispute by arbitration conducted pursuant to Part 137 of the Rules of the Chief Administrator of the Courts (22 NYCRR), except that the Parties will be bound by the decision of the arbitrators) and agree to waive the right to reject the arbitrator(s) award by commencing an action on the merits (trial de novo) in a court of law within 30 days after the arbitrator(s) decision has been mailed. By signing this agreement, the Parties acknowledge that each of us have received and read the official written instructions and procedures for Part 137 and the written instructions and procedures for the Suffolk County Bar Association Dispute Resolution Program (copies attached). The Parties understand that each of us is not otherwise required to agree to waive the right to seek a trial de novo pursuant to Part 137. (b) Arbitration Pursuant to the Commercial Arbitration Rules of the American Arbitration Association If the Fee Dispute Resolution Program does not apply to the dispute, then the arbitration will be conducted in Suffolk County in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any decision or award issued in that arbitration will be final and binding and non-appealable. KEA EMSEA EP.C. ATTORNEYS AT LAW Town of Southold January 31,2024 Page 6 Consent to Identification of Client in Advertising By executing this agreement, the Town is thereby giving written consent to the Firm to identify it by name as a client of the Firm in Firm advertisements, as defined in Rule 1.0(a) of the New York Rules of Professional Conduct. 10. Entire Agreement This letter represents the entire agreement between us concerning the terms and conditions of this engagement. By signing below,the Town acknowledges that this letter has been reviewed and understood and that the Town agrees to be bound by its terms and conditions. No change or waiver of any of the provisions of this letter will be binding on either the Town or the Firm unless the change is in writing and signed by both the Town and us. If the Town is in agreement with the foregoing terms and conditions,please sign and return a copy of this letter to us and retain the signed copy for the Town's files. Kindly also attach for our records a copy of the Town Board minutes containing the Resolution authorizing this retainer. Once again,I thank you for engaging Keane& Beane,P.C. as the Town's labor, employment,personnel and human resources law counsel. I look forward to continuing our longstanding relationship with the Town! Very truly yours; Richard K. Zuckerman RKZ/kg Encs. AGREED: TOWN OF SOUTHOLD Dated: /�T A. y'. New York State Fee Dispute Resolution Program Part 137 of Title 22 of the Official Compilation of Codes,Rules and Regulations of the State of New York Website:www.nycourts.gov/feedispute • E-mail:£eedispute'Jnycourts.gov `roll-free phone:1-877-FEES-137(1-877-333-7137) determined pursuant to a court subject to de novo review. Such §137.0 Scope of Program order; consent shall be in writing in a form This Part establishes the New prescribed by the Board of Governors. York State Fee Dispute Resolution (6) disputes where no attorney's Program, which provides for the services have been rendered for (d) The attorney and client may informal and expeditious resolution of more than two years; consent in advance to submit 'fee fee disputes between attorneys and disputes for final and binding clients through arbitration and (7) disputes where the attorney is arbitration to an arbitral forum other mediation. In accordance with the admitted to practice in another than an arbitral body created by this procedures for arbitration,arbitrators jurisdiction and maintains no Part. Such consent shall be in writing shall determine the reasonableness of office in the State of New York,or in a form prescribed by the Board of fees for professional services, where no material portion of the Governors. Arbitration in that arbitral including costs,taking into account all services was rendered in New forum shall be governed by the rules relevant facts and circumstances. York; and procedures of that forum and Mediation of fee disputes, where shall not be subject to this Part. available,is strongly encouraged. (8)disputes where the request for arbitration is made by a person §137.3 Board of Governors §137.1 Application who is not the client of the (a) There shall be a Board of (a) This Part shall apply where attorney or the legal Governors of the New York State Fee representation has commenced on or representative of the client. Dispute Resolution Program. after January 1, 2002,to all attorneys admitted to the bar of the State of New §137.2 General (b) The Board of Governors shall York who undertake to represent a (a) In the event of a fee dispute consist of 18 members, to be client in any civil matter. between attorney and client, whether designated from the following: 12 or not the attorney already has members of the bar of the State of New (b)This Part shall not apply to any received some or all of the fee in York and six members of the public of the following: dispute,the client may seek to resolve who are not lawyers. Members of the the dispute by arbitration under this bar may include judges and justices of (1) representation in criminal Part. Arbitration under this Part shall the New York State Unified Court matters; be mandatory for an attorney if System. requested by a client, and the (2) amounts in dispute arbitration award shall be final and (1) The members from the bar involving a sum of less than$1000 binding unless de novo review is shall be appointed as follows:four or more than$50,000, except that sought as provided in section 137.8. by the Chief Judge from the an arbitral body may hear membership of statewide bar disputes involving other amounts associations and two each by the if the parties have consented; (b) The client may consent in Presiding justices of the Appellate advance to submit fee disputes to Divisions. (3) claims involving arbitration under this Part. Such substantial legal questions, consent shall be stated in a retainer (2) The public members shall including professional agreement or other writing that be appointed as follows: two by malpractice or misconduct; specifies that the client has read the the Chief Judge and one each by official written instructions and the Presiding Justices of the (4) claims against an attorney procedures for Part 137, and that the Appellate Divisions. for damages or affirmative relief client.agrees to resolve fee disputes other than adjustment of the fee; under this Part. Appointing officials shall give (5) disputes where the fee to be consideration to appointees who have paid by the client has been (c) The attorney and client may some background in alternative determined pursuant to statute or consent in advance to arbitration dispute resolution. rule and allowed as of right by a pursuant to this Part that is final and court; or where the fee has been binding upon the parties and not (c) The Chief Judge shall Part 137 of Title 22 of the Official Compilation of Codes,Rules and Regulations of the State of New York designate the chairperson. program recommended by the Board the Board of Governors of Governors, and approved by the containing a statistical synopsis of (d)Board members shall serve for Presiding Justice of the Appellate fee dispute resolution activity and terms of three years and shall be Division in the judicial department such other data as the Board shall eligible for reappointment. The initial where the program is established, prescribe. terms of service shall be designated by shall be established and administered the Chief Judge such that six members in each county or in a combination of (5)designate one or more persons serve one-year terms, six members counties. Each program shall be to administer the program and serve two-year terms, and six established and administered by a serve as a liaison to the public,the members serve three-year terms. A local bar association (the "arbitral bar, the Board of Governors and person appointed to fill a vacancy body") to the extent practicable. The the grievance committees of the occurring other than by expiration of New York State Bar Association, the Appellate Division. a term of office shall be appointed for Unified Court System through the the unexpired term of the member he District Administrative Judges, or §137.5 Venue or she succeeds. such other entity as the Board of A fee dispute shall be heard by the Governors may recommend also may arbitral body handling disputes in the (e)A majority of current members be designated as an arbitral body in a county in which the majority of the of the board of governors shall fee dispute resolution program legal services were performed. For constitute a quorum. approved pursuant to this Part. good cause shown, a dispute may be transferred from one arbitral body to (f) Members of the Board of (b)Each arbitral body shall: another. The Board of Governors shall Governors shall serve without resolve any disputes between arbitral compensation but shall be reimbursed (1) establish written instructions bodies over venue. for their reasonable,actual and direct and procedures for administering expenses incurred in furtherance of the program, subject to the §137.6 Arbitration Procedure their official duties. approval of the Board of (a)(1) Except as set forth in Governors and consistent with paragraph(2),where the attorney and (g) The Board of Governors,with this Part. The procedures shall client cannot agree as to the attorney's the approval of the four Presiding include a process for selecting and fee or where the attorney seeks to Justices of the Appellate Divisions, assigning arbitrators to hear and commence an action against the client shall adopt such guidelines and determine the fee disputes for attorney's fees, the attorney shall standards as may be necessary and covered by this Part. Arbitral forward a written notice to the client, appropriate for the operation of bodies are strongly encouraged to entitled "Notice of Client's Might to programs under this Part, including, include nonlawyer members of Arbitrate," by certified mail or by but not limited to:accrediting arbitral the public in any pool of personal service. The notice (i) shall bodies to provide fee dispute arbitrators that will be used for be in a form approved by the Board of resolution services under this Part; the designation of multi-member Governors; (ii) shall contain a prescribing standards regarding the arbitrator panels. statement of the client's right to training and qualifications of arbitrate; (iii) shall advise that the arbitrators; monitoring the operation (2) require that arbitrators file a client has 30 days from receipt of the and performance of arbitration written oath or affirmation to notice in which to elect to resolve the programs to insure their conformance faithfully and fairly arbitrate all dispute under this Part; (iv) shall be with the guidelines and standards disputes that come before them. accompanied by the written established by this Part and by the instructions and procedures for the Board of Governors; and submission (3) be responsible for the daily arbitral body having jurisdiction over by arbitral bodies of annual reports in administration of the arbitration the fee dispute,which explain how to writing to the Board of Governors. program and maintain all commence a fee arbitration necessary files, records, proceeding; and (v) shall be accom- (h) The Board of Governors shall information and documentation paned by a copy of the "request for submit to the Administrative Board of required for purposes of the arbitration" form necessary to the Courts an annual report in such operation of the program, in commence the arbitration proceeding. form as the Administrative Board accordance with directives and shall require. procedures established by the (2) Where the client has Board of Governors. consented in advance to submit fee §137.4 Arbitral Bodies disputes to arbitration as set forth in (a) A fee dispute resolution (4) prepare an annual report for subdivisions (b) and (c) of section 2 Part 137 of Title 22 of the Official Compilation of Codes,Rules and Regulations of the State of New York 137.2 of this Part, and where the named attorney together with an attorney and client cannot agree as to "attorney fee response" to be §137.7 Arbitration Hearing the attorney's fee, the attorney shall completed by the attorney and (a) Arbitrators shall have the forward to the client,by certified mail returned to the arbitral body within 15 power to: or by personal service, a copy of the days of mailing. The attorney'shall (1) take and hear evidence "request for arbitration" form include with the "attorney fee re- pertaining to the proceeding; necessary to commence the arbitration sponse' a certification that a copy of (2) administer oaths and proceeding along with such notice the response was served upon the affirmations;and and instructions as shall be required client. (3) compel, by subpoena, the by the rules and guidelines of the attendance of witnesses and the Board of Governors, and the (e) Upon receipt of the attorney's production of books, papers and provisions of subdivision (b) of this response, the arbitral body shall documents pertaining to the section shall not apply. designate the arbitrator or arbitrators proceeding. who will hear the dispute and shall (b) If the attorney forwards to the expeditiously schedule a hearing. The (b)The rules of evidence need not client by certified mail or personal parties must receive at least 15 days be observed at the hearing. service a notice of the client's right to notice in writing of the time and place arbitrate, and the client does not file a of the hearing and of the identity of (c) Either party,at his or her own request for arbitration within 30 days the arbitrator or arbitrators. expense, may be represented by after the notice was received or counsel. served, the attorney may commence (f) Either party may request the an action in a court of competent removal of an arbitrator based upon (d) The burden shall be on the jurisdiction to recover the fee and the the arbitrator's personal or attorney to prove the reasonableness client no longer shall have the right to professional relationship to a party or of the fee by a preponderance of the request arbitration pursuant to this counsel. A request for removal must evidence and to present Part with respect to the fee dispute at be made to the arbitral body no later documentation of the work performed issue. An attorney who institutes an than five days prior to the scheduled and the billing history. The client may action to recover a fee must allege in date of the hearing. The arbitral body then present his or her account of the the complaint (i) that the client shall have the final decision services rendered and time expended. received notice under this Part of the concerning the removal of an Witnesses may be called by the client's right to pursue arbitration and arbitrator. parties. The client shall have the right did not file a timely request for of final reply. arbitration or (ii) that the dispute is (g) The client may not withdraw not otherwise covered by this Part. from the process after the arbitral (e) Any party may provide for a body has received the "attorney fee stenographic or other record at the (c) In the event the client response." If the client seeks to party's expense. Any other party to determines to pursue arbitration on withdraw at any time thereafter, the the arbitration shall be entitled to a the client's own initiative, the client arbitration will proceed as scheduled copy of said record upon written may directly contact the arbitral body whether or not the client appears,and request and payment of the expense having jurisdiction over the fee a decision will be made on the basis of thereof. dispute. Alternatively,the client may the evidence presented. contact the attorney, who shall be (f) The arbitration award shall be under an obligation to refer the client (h) If the attorney without good issued no later than 30 days after the to the arbitral body having cause fails to respond to a request for date of the hearing. Arbitration jurisdiction over the dispute. The arbitration or otherwise does not awards shall be in writing and shall arbitral body then shall forward to the participate in the arbitration, the specify the bases for the determin- client the appropriate papers set forth arbitration will proceed as scheduled ation. Except as set forth in section in subdivision (a) necessary for and a decision will be made on the 137.8, all arbitration awards shall be commencement of the arbitration. basis of the evidence presented. final and binding. (d)If the client elects to submit the (i) Any party may participate in (g) Should the arbitrator or arbitral dispute to arbitration, the client shall the arbitration hearing without a body become aware of evidence of file the"request for arbitration form" personal appearance by submitting to professional misconduct as a result of with the appropriate arbitral body, the arbitrator testimony and exhibits the fee dispute resolution process,that and the arbitral body shall mail a copy by written declaration under penalty arbitrator or body shall refer such of the"request for arbitration' to the of perjury. evidence to the appropriate grievance 3 Part 137 of Title 22 of the Official Compilation of Codes,Rules and Regulations of the State of New York committee of the Appellate Division All attorneys are required to for appropriate action. participate in the arbitration program established by this Part upon the filing (h) In any arbitration conducted of a request for arbitration by a client under this Part, an arbitrator shall in conformance with these rules. An have the same immunity that attaches attorney who without good cause fails in judicial proceedings. to participate in the arbitration process shall be referred to the appropriate grievance committee of §137.8 De Novo Review the Appellate Division for appropriate (a) A party aggrieved by the action. arbitration award may commence an action on the merits of the fee dispute §137.12 Mediation in a court of competent jurisdiction (a) Arbitral bodies are strongly within 30 days after the arbitration encouraged to offer mediation award has been mailed. If no action is services as part of a mediation commenced within 30 days of the program approved by the Board of mailing of the arbitration award, the Governors. The mediation program award shall become final and binding. shall permit arbitration pursuant to this Part in the event the mediation (b) Any party who fails to does not resolve the fee dispute. participate in the hearing shall not be entitled to seek de novo review absent (b)All mediation good cause for such failure to proceedings and all settlement participate. discussions and offers of settlement are confidential and may not be (c) Arbitrators shall not be called disclosed in any subsequent as witnesses nor shall the arbitration arbitration. award be admitted in evidence at the trial de novo. §137.9 Filing Fees Upon application to the Board of Governors, and approval by the Presiding Justice of the Appellate Division in the judicial department where the arbitral program is established, an arbitral body may require payment by the parties of a filing fee. The filing fee shall be reasonably related to the cost of providing the service and shall not be in such an amount as to discourage use of the program. §137.10 Confidentiality All proceedings and hearings commenced and conducted in accordance with this Part, including all papers in the arbitration case file, shall be confidential, except to the extent necessary to take ancillary legal action with respect to a fee matter. §137.11 Failure to Participate in Arbitration 4 STANDARD INSTRUCTIONS TO CLIENTS FOR ARBITRATION OF FEE DISPUTES IN THE COUNTY OF SUFFOLK PURSUANT TO RULE 137 Part 137 of the Rules of the Chief Administrator, Title 22, provides a procedure for the arbitration of fee disputes for amounts between$1,000.00 and$50,000.00,between attorneys and clients in civil cases. A copy of Part 137 will be made available upon request. Your attorney may not bring an action in court to obtain payment of a fee, unless he or she first has notified you of your right to elect to resolve the dispute by arbitration or the written agreement between you and your attorney provides for arbitration which will be binding on both you and your attorney and cannot be appealed except in certain limited circumstances. If the amount in dispute is under$10,000.00, but more than$1,000.00, the arbitration will be heard by one attorney arbitrator. If the amount in dispute is $10,000.00 or more, but less than$50,000.00 (unless by agreement of the parties), the arbitration will be heard by a panel of three arbitrators, consisting of two attorneys and one layperson, who shall be selected at random from a pool of arbitrators comprised of laypersons. All arbitrators will be selected by the appropriate Dispute Resolution Committee of the Suffolk County Bar Association. Arbitration is available only if you dispute the amount of the fee paid or owed. In order to elect to resolve this dispute by arbitration,you must file the attached"Request for Fee Arbitration" with the Suffolk County Bar Association within 30 days from the receipt of this Notice with the appropriate fee of$150.00, unless other arrangements are made to obtain a waiver of fee. The Suffolk County Bar Association is located at 560 Wheeler Road, Hauppauge, New York 11788- 4357, (631)234-5511;filing of the Request for Arbitration must be made with the Suffolk County Bar Association,who has jurisdiction over the attorneys in the county in which the civil action was brought or would have been brought. If you do not file the Request for Arbitration within those 30 days,you will not be permitted to elect to resolve the dispute by arbitration, and your attorney will be free to bring a lawsuit in court to seek to obtain payment of the fee, or may elect arbitration if specifically provided for in their retainer agreement or letter of engagement. Once you or the attorney timely files the Request for Arbitration,the arbitration hearing will be held as expeditiously as possible,and a decision will be made within 30 days of the date of the hearing. You will receive notice of the decision by mail. You are not required to be represented by an attorney at the hearing,although you may appear with an attorney,if you wish. You may also participate by submission of a notarized written statement served on all named parties. A stenographic or other recording may be taken of the hearing and a copy to be provided to the panel, upon request by the panel. SCBA Fee Dispute Resolution Form 137-3 Amended 1/31/14 Suffolk County Bar Association Dispute Resolution Program Rules Suffolk County Bar Association 560 Wheeler Road Hauppauge, New York 11788-4357 (631) 234-5511 1 Section 1 Establishment of Program This program is established pursuant to part 137 of the Rules of the Chief Administrator, Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York and the Standards and Guidelines approved as of October 3rd, 2001. Section 2 Definitions The following definitions will apply throughout these rules, except as otherwise provided: A. "Program" means the Suffolk County Bar Association Dispute Resolution Program established pursuant to Part 137 of the Rules of the Chief Administrator B. "Client" means a person or entity receiving legal services or advice from a lawyer on a fee basis in the lawyer's professional capacity C. "Administrator' means the person primarily responsible for administration of the Program as designated by the Suffolk County Bar Association D. "SCBA" means the Suffolk County Bar Association E. "Arbitrator" means a person who serves as an arbitrator under the Program F. "Case" means any case or controversy cognizable under the Program where the amount in dispute is at least in the sum of$1,000.00 G. "Board" means the Board of Governors of the Attorney-Client Fee Dispute Resolution Program established under Part 137 of the Rules of the Chief Administrator H. "Fee Dispute" means the committee appointed by the Suffolk County Bar Association Board of Directors which oversees the Dispute Resolution Program and make decisions concerning administration of the Program. 2 Section 3 Application These rules apply where representation has commenced on or after January 1, 2002, to all attorneys admitted to the Bar of the State of New York who undertake to represent a client in a civil matter, where the majority of legal services are performed in Suffolk County or where the attorney maintains an office for the practice of law in Suffolk County. These rules shall not apply to any of the following: 1. representation in criminal matters; 2. amounts in dispute involving a sum of less than $1,000.00 or more than $50,000.00, except that an arbitral body may hear disputes involving other amounts if the parties have consented in writing; 3. claims involving substantial legal questions, including professional malpractice or misconduct; 4. claims against an attorney for damages or affirmative relief other than adjustment of the fee; 5. disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right by a court; or where the fee has been determined pursuant to a court order; 6. disputes where no attorney's services have been rendered for more than two years; 7. disputes where the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New York, or where no material portion of the services was rendered in New York; and 8. disputes where the request for arbitration is made by a person who is not the client of the attorney or the legal representative of the client. 3 Section 4 Arbitrators Applicants for membership as an Attorney Arbitrator must meet or exceed the following requirements: A. Minimum of five (5)years of admission to the Bar B. Member in good standing of the Suffolk County Bar Association or other recognized bar groups C. Ability to evaluate and apply legal principles D. Ability to manage the hearing process E. Minimum of six (6) hours of fee dispute resolution training or comparable training and experience in arbitration and/or other forms of dispute resolution F. Other relevant experience or accomplishments G. Freedom from bias and prejudice H. Thorough and impartial evaluation of testimony and other evidence I. Willingness to devote time and effort when selected to serve J. Willingness to successfully complete training under the guidelines of the Program Applicants for membership as a Non-Attorney Arbitrator must meet or exceed requirements E through J above. All training of arbitrators will be provided by the New York State Office of Court Administration at its sole cost and expense, or by the Suffolk County Bar Association, or other recognized dispute resolution programs approved by the board. Arbitrators will serve on a voluntary basis, without financial compensation. 4 Section 5 Initiating the Arbitration The Submission Process Client: A client with a fee dispute starts the process by filing a request for dispute resolution with the Administrator of the Program together with the required filing fee of$150.00 *see Financial Hardship Policy. Forms can be obtained by calling the Administrator at 631/234-5511, extension 222, by obtaining the form in person at the Suffolk County Bar Association, located at 560 Wheeler Road, Hauppauge, New York 11788-4357 or by requesting said form by facsimile transmission to the administrator(631/234-5899)or by e-mail to the administrator at fee@scba.org between the hours of 9:00 a.m. and 5:00 p.m., Monday to Friday, or you may download forms on the SCBA wesbsite at www.scba.org/fee dispute/fee. overview.html Attorney: An attorney starts the process by sending a Notice of Right to Arbitrate and required forms to the client. If there is a prior written agreement to arbitrate, the initiating party shall submit a copy to the Administrator with their request to arbitrate. If the client fails to then file a request to arbitrate within 30 days, the attorney who's written agreement provides for such dispute resolution may file the request to arbitrate. An attorney is required to send by certified mail or by personal service, the notice of right to arbitrate with appropriate forms upon initiation of any dispute involving fees between client and attorney, and/or prior to commencement of any civil action for collection of fees. A party may make application to the Administrator to have the filing fee waived, based upon limited financial resources which make the filing fee a financial burden or would prevent said client from utilizing this resolution program. The request must be made in writing to the Administrator who will have the discretion to grant or deny the request. Should the arbitration result in a finding in favor of the client for whom the fee was waived, the waived filing fee will be deducted from such award, and paid directly by the attorney to the Association, after deduction from said award. The request for arbitration must contain the name and address of the parties along with the telephone numbers of the parties to be contacted, and a brief description of the claim and the amount involved. Upon receipt of the request for arbitration, the Administrator will mail a copy of the request for arbitration to the named attorney, together with an attorney fee response, to be completed by the attorney and returned 5 to the Administrator within 15 days of mailing. The attorney will include with the attorney fee response, a copy of retainer or letter of engagement, if any, and an affidavit that a copy of the response was served on the client. Upon receipt of the attorney fee response, or if no response is received within 15 days of mailing of the attorney fee response form to the attorney, the Administrator will endeavor to appoint an arbitrator or arbitrators'to the case with experience in the subject matter of the representation. Arbitrators will be assigned from a panel of neutrals who have qualified to act as arbitrators in fee dispute matters. Disputes involving a sum of less than $10,000.00, but more than$1,000.00, will be submitted to one attorney arbitrator. Disputes involving a sum of $10,000.00 or more, but less than $50,000.00 (unless by agreement of the parties), will be submitted to a panel of three arbitrators, which will include one non-lawyer, unless otherwise provided for in writing. When a party and attorney are notified of the appointment of the arbitrator(s),any conflict of interest shall promptly be disclosed in writing but not less than five (5) days prior to the scheduled hearing. Upon receipt of a case, the Administrator will notify the parties of a date, time, and place for the hearing, which notice will be at least fifteen (15) days prior to the scheduled date, with the identity of the arbitrator or arbitrators. All arbitrations will be held at the offices of one of the arbitrators or at the Suffolk County Bar Association. Section 6 Powers of arbitrator and conduct of the hearing An arbitrator has the following powers: A. Issue subpoenas and administer oaths B. Take and hear evidence pertaining to the proceeding C. Rules of Evidence need not be observed at the hearing and either party, at his or her expense, may be represented by counsel. Representation by counsel must be disclosed on filing form or response D. Arbitrator(s) may adjourn or postpone the hearing 6 The burden will be on the attorney to prove the reasonableness of the fee by a preponderance of the evidence and to present documentation of the work performed and the billing history. The client must present his or her account of the service rendered and time expended. Witnesses may be called by the parties. Participation may be by written statement sworn to under penalties of perjury. The client will have the right of final reply. Any party may provide for stenographic or other record at the party's expense, providing that the panel is given duplicate copy at time of hearing upon request by the panel. Any other party to the arbitration will be entitled to a copy of said record, upon written request and payment of the expense for such record. The arbitration awards will be issued to the parties no later than thirty (30) days after the completion of the hearing. Arbitration awards will be in writing and specify the basis for the determination. Except as set forth herein, all arbitration awards will be final and binding, unless a trial de novo is commenced under the Rules within the time set forth therein. Neither the Associations, nor the Committee, its Chair or members, Administrator, Arbitrator and staff person acting under these Rules, shall be a necessary party in any judicial proceeding relating to any arbitration conducted in accordance with these Rules. None of the parties listed in the preceding sentence shall be liable for any act or omission relating to any dispute in connection with any arbitration conducted under these Rules. Without limiting the scope of the preceding two sentences, it is intended that the Committee, its Chair and its members, and any Arbitrator acting under these Rules have the same immunity as a judicial officer of body would have in a court proceeding. The parties to any arbitration held under these Rules will be deemed to have conferred the immunity described above. The hearing will be conducted by either the sole or all of the arbitrators in case of a controversy in excess of$6,000.00, but a majority may determine any question and render an award. Section 7 Trial de novo A party aggrieved by the arbitration award may, unless there is a written agreement to the contrary, commence an action on the merits of its fee dispute (a trial de novo) in a court with jurisdiction over the amount in dispute, within thirty (30) days after the arbitration award has been mailed. If no action is commenced within thirty (30) days of the mailing of the arbitration award, the award shall become final and binding. Upon filing of a demand for trial de novo, the aggrieved party shall also mail a copy of the demands to the Administrator and other side. 7 Any party who does not participate in the arbitration hearing will not be entitled to a trial de novo absent good cause for such failure to participate. Arbitrators shall not be called as witnesses nor shall the arbitration award or record of the proceedings be admitted in evidence at the trial de novo. Section 8 Communication with arbitrators No party and no one acting on behalf of any party will communicate unilaterally concerning the arbitration with an arbitrator or a candidate for an arbitrator. Unless the parties agree otherwise or the arbitrator so directs, any communication from the parties to an arbitrator will be sent to the other party. Section 9 Enforcement of arbitration awards Any award that has become final and binding may be entered as a judgment upon moving to confirm said decision in a court of competent jurisdiction, by appropriate notice, pursuant to the CPLR Article 75. Section 10 Vacancies If, after an arbitrator is assigned to the case, the arbitrator is unable to perform his or her duties, they will promptly notify the Administrator, who will appoint a substitute arbitrator. In the event that one arbitrator on a panel of arbitrators is unable to attend the hearing or continue, the remaining arbitrators may continue with the hearing to the determination of the controversy, unless one party objects. Upon receipt of an objection, the arbitration will be deemed terminated and the matter will be reassigned by the Administrator, who will appoint a substitute arbitrator to take the place of the arbitrator who was unable to begin or conclude the arbitration hearing. Section 11 Attendance at hearings The arbitrators will maintain the privacy of the hearings unless the rules or the law provides to the contrary. Any person having a direct interest in the arbitration is entitled to attend the hearing. All attorneys are required to participate in the arbitration program. The arbitrators shall otherwise have the power to require the exclusion of any witness, other than a party or other essential person, during the testimony of any other witness. It will be discretionary with the arbitrators to determine the propriety of the attendance of any other person, other than a party and its legal representatives. Section 12 Arbitration in the absence of a party or representative 8 Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to participate or fails to obtain a postponement. An award will not 'be made solely on the default of a party. The arbitrator will require the party who is present to submit such evidence as the arbitrator may require to support the participant's position. Section 13 Waiver of rules Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with, and who fails to state an objection at the time of said arbitration or prior thereto, will be deemed to have waived the right to object. Section 14 Majority decision When the panel consists of more than one arbitrator, unless required by law or by these rules, the majority of the arbitrators (or the remaining arbitrators in the case of a vacancy under Section 10) must make all decisions. Section 15 Interpretation and application of rules The arbitrators will interpret and apply these rules in so far as they relate to the arbitrator's powers and duties. When there is more than one arbitrator, and a difference arises among them concerning the meaning or application of these rules, it will be decided by a majority vote. In the event that the Administrator or an arbitrator(s) is unable to resolve any issue concerning the arbitrator(s) duties or administration of this Program, said question will be referred to the Fee Dispute Resolution Committee for a final decision. Section 16 Time of award Unless otherwise agreed by the parties, the award shall be issued not later than thirty(30)days from the date of the completion of the hearing. The Administrator will, upon receipt of the award from the arbitrator or chair of the panel, mail the same to the parties at the address given by the parties for that purpose. The decision will be accompanied by a letter advising the parties of their rights regarding the decision. Section 17 Record Keeting A. The Administrator will maintain a separate folder for each "Request for Arbitration" form received. The records are to be kept at the Suffolk County Bar Association for two (2) years. At the end of the two years, they may be disposed of as the Administrator sees fit. 9 B. With the exception of the award itself, all records, documents, files, proceedings, and hearing pertaining to the arbitration of a dispute under these rules, in which both parties have consented to be bound by the results, may not be open to the public or any person not involved in the dispute, and shall be confidential except to the extent necessary to take ancillary legal action with respect to this fee matter. C. The Association will maintain the names, addresses, telephone numbers, and summary of credentials of the arbitrators and will update the same from time to time. Section 18 :Financial HardshipPoli olicY The program's standard policy is to make the program accessible to all who choose to use it. Toward that end, the program maintains a reasonable fee schedule that considers the financial exigencies of the non-lawyer participants, provides extended payment plans, and/or grants full or partial fee waivers under circumstances of extreme financial hardship. Every attempt will be made to keep the names of the individuals who seek hardship assistance and the information disclosed confidential. Section 19 Amendment of Rules These rules may be amended from time to time, upon majority vote of the Board of Directors of the Suffolk County Bar Association, the Board of Governors, and the Presiding Justice of the Appellate Division, 2"d Department. SCBA Fee Dispute Resolution Rules (Amended 1/31/14) 10 Form W-9 Reque'st for Taxpayer Give.Form to the (Rev.Qct6ber 20i 8) Identification Number and Certification r.4�4uez�tee.Do.tiot Treasury send to th*e IRS*. IntemaE,Revenue service ID'Go to.ww.W.!mdoV1FbrmW9-for instructions and the-latest-information. 1.Naive(as sh4wn on yourJnc6m"a4 return).NameAs required an this line;:do not leave.l.tfis-line blank keane'&Beane,P.C. Z.Yuslnes.d nkmaldiseegardedentity name,Ifdifteient feorh'above- 3.Check apprx?prikte box-ibr.-f6deral tax classification oUthe-person whose name le-entered on fine 1.Check only one ol'the 4 Exemptions'(o'Ddeiappli.bnly'(o- -fallowlinj.seven boxes. certain prithiesi not l6dMdufflksee. CL inkruceldris oh p6ge El Indly1dual/stile proprietor or 0 C Corporation El S Corporation El Partnership ❑T'ru Vastate sin�gle-rheinber LLC. Exempt paypexcde(if any)- CL 0 Limited Iiablflty company.Enter,thii-tax classification(C=C-curparailerij S=S corporation,P=Paftnersh)p))- Note.Check the apOrap6te bok-.In the line above fc0he Fax cMss;fflcaf16n'(if thir Alngfe-inember oWn'er. 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Requdstdr.'s name and address-(dp�ibnal) Seeinstruct7 445 Harnilitidn-Avenue,Suite 1.500 6 City,state,and ZIP.code White Plains,NY 10601 7 Lis.ta.ccount numbeqs)'here(optional)' H7 ngg-ToixPayin Identification Number(TIN) Enter your TIN in the.appropriate box:The TIN provided rnt4st Match the narriQ given on line-Ito aVold Social sepurity.number backup withholding.For individuals;this is gereneaityll�your socia!security number(S.SN).However;for a -m -� residentalien,We Iroprietor,or disregarded seethe instructions for Part(, liter.For other entities,.1:is-your employeridentificalibri number.(EIN)...Ifyou.do.not have a number,see Now to get TIA later. or I Note:Ifthe-apeount isIn more than one name;see the'instructions.for line 1.Also--,see,Wpat Name and -EMpIdyer-identifibation number tJuffibqr'To Give'the Requeg.teffqr gdIdellnes.-jon whbse'_.*numbdrto.ehi6r. 31 ?--1.31 0 't 3 - _I 2 1 8 1 4.-[ 1 F_Certfftcatlon, Uin,der.penilties.of perjury,Icer fify.-thit 1.The number shown',on this lorm.is my cOrrecttaxpaypt idenfificAtion number(or l brii-.waiting riumber-tolib issued to-mie);.and 2.1 am not subject'-to backup withhbldfnj because:(a)I.am exempt.from.badkup withholding,'6r.(b).l have-fiot been notified by the Internal,Revenue Service(IRS)that farn subject.to.backup withholding as a result of-a failure to.report all Interest-or dividends,or(0)"JIRS-has notified me that-I.am no 1pngbr subjectlo.ba.ckup withholding;,and .3.1'a'm a-U.S.citiz'en br-other U.'S...Ders'on(defined belovf);.and 4.Tt�eFA:rC�c"dde(s)entdrdd-drithis.'f0 • hyFmCif-a )Jndiphtinb-that-I'amexempt. .: . . p Cer.titi4datioii'instructidns..Ydu MUst cross.out Item-2 abov6:ltyqu.fiave:beeri iidtlfiddby the.IRS that you are currently subject td�.backup Olthholdfngbeddusb. y?u*h.ave fitilbi:116.repi5ft a!l interest and.dividtinds on.VbUr fax return.F6r.reii-es't'ate'transactions!i.teml diids.nof apply.For mortgage interest paid.. acquisition or aba6d6fterit.of secured property,'6an001'lition.6f debt,.c6nirlbutiondto-anj6dividual retirement-aiTarigernenf(IRA),and generally,payments ay7ents other than.Interest and dividends,you are not reqtflred to sign the.certification,.bui-you must provide your correct TIN.See the[n'structions,for.Part 11,later; Sign NjejO­tl P_ rnQ41-0, Here.r U.S.pars"pri* 4y 10 -L-4 L. *Fqrrn i 690--DIV(dividends,including those from stocks or mutual General Instructions funds) .Section refgreric6s are to thelriternal Revqhud God&unIess-.btKdrWii;e. 4 Form I 099-MISC(viariciis types lot Income,prizes,awards;or'gross rioted. proceeds) Future development's.ror,the latest infEirmatioei about developmierrti' iForm 109.9 -B(sto6k'&-fnu1tA fund sialed and-ciiriaiei other i - related-to Form W-9-and its instructions;such'as legislation enacted transactions by.bfokbis) -after they were published,go to www1rs.govJFbJ`M.W9. i#orm.109973(proceeds from real'estateiransactions)* Purpose of*Form *.'Form 1098-K(merchant card And third party network-transactions) An-jindiviidual-oir.-cintity(FormrW-9 requester)who ls required tofile.an Foem 10913(holme.nnbrtgage intetest).'1098-E(student Than interest),. Itiforrhation-return with.the IRS must obtain your-correct*taxpayer 1099-T(tuitio n). identification nurhber.(nN)which may be your social security number •Form 100-0-(canceled debt) (SSN), - - . individual taxpaiyer'identificatfoh-nu�nbe.r'(1-T-IM,*.ad6p tion laxl5ioridgrititdatio:n n6nJ.6LrJ(ATIN),.6r employer identification hftbet F�Drm 1.090-A(acquisition or abandonment of secured prop".) (EIN),to'nepoffort.ah inf8rmMion'r41urn-the-deriountpaidto-ypij,or other Uie:Fcrin W-9 only if ybU are a-U.S'.person(In"cluding.a residient amobntreporlWe on-an information return.ExamplQs of Iriforrhatiqn alien),to provide your-correct TIN'. returns include,..but*Bre-not'rtmiled.t�ai t4e following, lfyou dp not return Form*9 to the.requester with a 771V;you.might •Form 1099-INT(interest earned or paid) be subject to backup.w.ithholding;.See What is backup.Wlitiholdirig. later. Cat.No.IW31X r-oirrn-W-9(ne,v.