Pursuant to the Arbitration of Fee Disputes (AFD) program of the State Bar of Georgia, 1 Ronald Browner filed a petition for arbitration with the State Bar Committee on the Arbitration of Attorney Fee Disputes (the Committee) complaining that his former lаwyer, Len Antinoro, contracted with him to perform certain legal services, accepted a $19,000 fee, but failed to fully perform the services. Browner sought a partial refund of the fee and agreed to be bound by the arbitration. Antinoro filed a response to the petition denying that any refund was due and refusing to be bound by the result of the arbitration. The Committee accepted jurisdiction over the fee dispute, but, because Antinoro refused to be bound, the arbitration hearing was conducted ex parte according to the provisions of the AFD program. The arbitration panel entered an award finding that Antinoro owed Browner a refund of $16,777 of the fee. Under the terms of the AFD program, the State Bar provided legal counsel to Browner at no cost to represent him in subsequent litigation against Antinoro seeking a judgment in the amount of the award. After a bench trial of the subsequent action filed against Antinoro in the Clayton County State Court, thе trial court entered judgment in favor of Browner in the amount of the $16,777 award, and Antinoro appeals.
1. Antinoro claims the trial court erred by denying his motion for summary judgment made on the basis that the statute of limitation applicable to aсtions for breach of the attorney-client contract had expired when the subsequent action to collect the award was filed.
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Since the record does not reflect that the parties entered into a written contract, the statute of limitation applicable to Browner’s claim that Antinoro breached an oral attorney-client employment contract is OCGA § 9-3-25 which requires that an action for breach of the contract be filed within four years frоm the date of the breach of duty.
Frates v. Sutherland, Asbill & Brennan,
In addressing this issue, we first consider the creation and purpose of the AFD program and its operation under the particular facts of this case. The State Bar of Georgia operates as an administrative arm of the Georgia Supreme Court to аssist the Court in the exercise of its judicial function to regulate the practice of law.
Wallace v. Wallace,
In the event the respondent lawyer agrees to be bound, the AFD program provides that the arbitrators’ award is final and binding upon both lawyer and client and may be enforced according to the general arbitration laws of Georgia (Rule 6-417) and specific procе
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dures set forth for obtaining a review of the award in the appropriate superior court. AFD program, supra, Rule 6-501; see
Parks v. Anderson,
Where a respondent lawyer refuses to be bound, a unique feature of the AFD program provides that, if the Committee takes jurisdiction of the complaint and determines that a hearing is warranted, “the matter will not be dismissed, but an ex parte arbitration hearing will be held. If the outcome of this hearing is in the client’s favor, the State Bar will provide a lawyer at no cost to the client to represent the client in subsequent litigation to adjust the fee in accordance with the arbitration award. This is intended to relieve the client of the burden of paying a second lawyer to recover fees determined to have been excessively charged by the first lawyer.” AFD program, supra, Preamble. A respondent lаwyer who will not agree to be bound by the arbitrators’ decision may attend the ex parte hearing but waives the right to participate except upon the express consent of the arbitrators. Rule 6-402. Where the client receives a favorable award to which he has agreed to be bound, and the respondent lawyer refuses to be bound by it, the State Bar will provide the General Counsel, Assistant General Counsel, or another volunteer lawyer to represent thе client without cost (other than actual litigation expenses) “in any litigation necessary to adjust the fee in accordance with the award.” Rule 6-502. Furthermore, “[i]n such cases, the award rendered will be considered as prima facie evidence of the fairness of the award and the burden of proof shall shift to the lawyer to prove otherwise.” Rule 6-502 (a).
Thus, the AFD program recognizes that, where the respondent lawyer has refused to be bound by the arbitration and resulting аward, “subsequent litigation” by the client may be “necessary to adjust the fee in accordance with the award.” Rule 6-502. We construe this to mean that, if a respondent lawyer who refused to be bound by the arbitration refuses to comply with the resulting award, the enforcement mechanisms of the AFD program applicable to binding arbitration do not apply, and the client who agreed to be bound by the award may file a civil action seeking a personal judgment against the lawyеr in the amount of the award. In such subsequent litigation, the AFD program gives the client the benefit of free legal representation and a rule establishing the award as prima facie evidence of its fairness. AFD program, supra, Rule 6-502. Accordingly,
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Browner’s suit filed on April 21, 1989, was not a special proceeding seeking review and confirmation of an arbitration award to which the parties agreed to be bound, but a civil action seeking a personal judgment against Antinoro in the amount of the non-binding award made under' the AFD program. Compare
Vlass v. Security Pacific Nat. Bank,
. A basic purpose of the AFD program is to provide a means to encourage the resolution of fee disputes between lawyers and clients without resort to traditional litigation. In order to give effect to this purpose and encourage use of the program, we conclude that Browner’s timely filing of a petition to arbitrate under the AFD program prior to the expiration of the four-year statute of limitation applicable to the civil action sought to be arbitrated tolled the statute of limitation during the pendency of the AFD proceedings. The AFD program provides for notice to respondents of the complaint and notice of and the right tо attend all arbitration hearings. Thus, tolling the applicable statute of limitation during the AFD proceedings does not frustrate the fundamental purpose of the limitation period which is to ensure that an adverse party has timely noticé of a claim so he can investigate the claim and prepare a defense while the facts are still fresh. See
Butler v. Glen Oak’s Turf,
Applying this rule, we have no difficulty concluding that the statute of limitation was tolled from the date the petition was filed until the award was rendered by the arbitrators in favor of Browner on September 27, 1985. It is not clear, however, whether the statute of limitation continued to be tolled for the entire period after the award was rendered until the subsequent civil actiоn was filed by Browner on April 21, 1989. The AFD program contemplates that, where the fee dispute is not resolved after a non-binding award is rendered in favor of the client, subsequent litigation against the lawyer may be necessary to collect the award. The AFD proceedings remain pending after the award to the extent that the program aids in the continuing collection effort by providing the client with free legal representation to file any necessary collection action and an evidentiary presumption in favor of the fairness of the award. But the program does not set forth any time limit applicable to filing subsequent litigation. In the absence of any time limit, we conclude that, after the award is rеndered, the client must act with reasonable diligence in pursuing collection of the award and in filing any civil action *668 necessary to accomplish that purpose. Accordingly, when a client files a civil action to collect an award under the AFD program after the applicable statute of limitation has expired, the client must show that he acted with reasonable diligence in filing the action in order for the statute to be tolled for the period between the award and the action.
Whether or not the client acted with reasonable diligence is an issue to be determined within the discretion of the trial court based on the facts of each case. See
Bennett v. Matt Gay Chevrolet Oldsmobile,
2. We find no error in the trial court’s denial of Antinoro’s motion to dismiss the action on the basis that Ronald Browner was not the real party in interest to bring the civil action to collect the award rendered in his favor under the AFD program.
3. Browner’s motion to dismiss the appeal based on the fact that no transcript of the trial testimony was included on appeal is denied.
Judgment affirmed in part, vacated in part, and case remanded with directions.
Notes
See Rules and Regulations for the Organization and Government of the State Bar of Georgia, Part VI, Rules 6-101 et seq., Ga. Ct. & Bar Rules (1995), pp. 11-94 to 11-103; 247 Ga. A-2 to A-ll;