A Lexington attorney who filed a collection action against a client in circuit court didn’t waive her right to have the state bar settle a dispute over the underlying fee, the South Carolina Court of Appeals has ruled.

Lisa Moore retained Jean Derrick to represent her in a family court matter in 2011. They signed a fee agreement which provided that any dispute concerning Derrick’s fee would be submitted to the bar’s Resolution of Fee Disputes Board. Derrick secured a favorable outcome for Moore, but in 2014 filed the action against her to recover the unpaid balance of her fees.

Moore counterclaimed, and a circuit court judge granted Derrick’s subsequent motion to compel Moore to submit her fee dispute to the board. On appeal, Moore argued the Derrick had waived the right to compel their appearance before the board by choosing to file a lawsuit in the circuit court instead.

Chief Judge James Lockemy, writing for a unanimous panel in a Jan. 23 opinion, disagreed, writing that nothing in the state’s appellate court rules prevents an attorney from filing suit to collect a delinquent fee from a client who hasn’t contested the fee’s validity, and the rules explicitly state that a dispute doesn’t exist solely because of a client’s failure to pay a fee. Lockemy noted that there was no evidence that Moore was dissatisfied with the size of the bill prior to the collection action being filed.

“Importantly, Client did not actually dispute the fee until she filed an answer to Attorney’s complaint and invoked the fee dispute provision as an affirmative defense,” Lockemy wrote.

Past cases in which courts have found that a party to a contract had waived its right to arbitration have required the opposing party to show that they had suffered actual prejudice, Lockemy wrote, but in this case Moore had shown no such prejudice, since she can still litigate her other counterclaims in circuit court.

The appeals court also rejected Moore’s argument that the fee dispute resolution needed to comply with the state’s Uniform Arbitration Act. The court acknowledged that resolution of a fee dispute before the board is similar to arbitration, but noted that lawyer-client agreements are explicitly excluded from the law’s ambit.

William Tetterton of Camden and Katherine Carruth Goode of Winnsboro represented Derrick. Tetterton did not return a phone call seeking comment on the ruling.

Robert Dodson of Columbia represented Moore. Dodson said that his client was still considering her options and so declined to comment on the court’s ruling.

The seven-page decision is Derrick v. Moore (Lawyers Weekly No. 011-013-11). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan


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