Metropolitan News-Enterprise


Friday, February 23, 2024


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Court of Appeal:

Arbitrator in Fee Dispute Not Obliged to Disclose Specialty

Opinion Approves Confirmation of Award in Favor of Attorney, Rejects Defendant’s Contention That Neutral Had Duty to Divulge His Representation of Lawyers in Fee-Collection Cases, Biling Himself as ‘Lawyer’s Lawyer’


By a MetNews Staff Writer


A judge did not err in declining to vacate an arbitration award for $72,900.58 in favor of an attorney who sought his fees for services in a divorce case, the Court of Appeal for this district has held, rejecting the contention by the client that the arbitrator failed to make a compulsory disclosure that, in his law practice, representation of attorneys in fee disputes has been a specialty of his and that he refers to himself as a “lawyer’s lawyer.”

The opinion by Presiding Justice Brian S. Currey of Div. Four was filed Wednesday and not certified for publication. It affirms a judgment by Los Angeles Superior Court Judge Maurice A. Leiter who confirmed the award by arbitrator Matthew C. Mickelson, an Encino sole practitioner, in favor of Seal Beach family law attorney Donald S. Eisenberg.

Eisenberg’s former client Jordan S. Esensten, a West Los Angeles lawyer, sought an order vacating the award on various grounds, including an alleged violation by the arbitrator of Code of Civil Procedure §1281.9(a), which provides:

“In any arbitration pursuant to an arbitration agreement, when a person is to serve as a neutral arbitrator, the proposed neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial….”

Statements on Website

Esensten, who represented himself on appeal, pointed to various representations by Mickelson on his website, including this:

“He has served as a ‘lawyer’s lawyer,’ representing attorneys in dozens of lawsuits against former clients for unpaid fees; his lawyer clients range from one of the top-25 largest law firms in Los Angeles County to sole practitioners. Mr. Mickelson has also defended attorneys in legal malpractice matters.”

The former client made note of articles Mickelson has written on collection efforts by lawyers and an ad that appeared in the April 2011 edition of Los Angeles Lawyer magazine telling of his specialization in handling “judgment collection litigation.”

He argued in his brief on appeal that Mickelson “has devoted his entire career advocating on behalf of fellow lawyers against clients in fee disputes and has publicly expressed disdain for clients who engage in fee disputes with their lawyers” and that a reasonable person aware of the facts “might reasonably entertain a doubt that the arbitrator would be able to be impartial.”

Eisenberg’s Brief

The respondent’s brief maintains:

“There is no reasonable basis to believe that Mickelson could not be fair to a lawyer-client in a fee dispute with another lawyer simply as a result of the nature of his practice, which was undisputedly varied both as to subject and client base.”

Currey agreed that the evidence shows that Mickelson does have a varied practice. He wrote:

“The evidence discussed above shows the arbitrator is a solo practitioner who specializes in relatively complex collections actions, maintains an active appeals practice, and has substantial experience representing attorneys in actions against former clients seeking payment of unpaid fees. The record does not, however, establish that, at the time of the arbitration hearing held in November 2019, his practice was primarily—let alone exclusively—devoted to representing attorneys collecting unpaid fees and, therefore, dependent on individuals such as Eisenberg for business.”

Inadequate Evidentiary Basis

He continued:

“Nor does it show that, while presiding over the arbitration in this case, the arbitrator was actively representing any attorneys in fee disputes. Moreover, none of the publications in the record reflect or otherwise suggest the arbitrator disdains clients who assert malpractice claims against their former lawyers in actions for unpaid fees. Thus, the evidence does not establish the arbitrator had any incentive, pecuniary or reputational, to rule in Eisenberg’s favor.”

The presiding justice declared:

“[O]n the record before us, we conclude that a reasonable person aware of the arbitrator’s legal practice would not have entertained a doubt about his impartiality in this case….Consequently, the arbitrator was not required to disclose the nature of his legal practice under section 1281.9, subdivision (a).”

The case is Eisenberg v. Esensten, B316059.

Leslie Ellen Shear and Julia C. Shear Kushner of the Law Office of Leslie Ellen Shear in Encino represented Eisenberg.


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