August 3, 2011 § 8 Comments

You have tried a simply sterling case, and now you are ready to cash in on the pot at the end of the rainbow: an award of attorney’s fees against the opposing party. But the judge says, “no attorney’s fees for you.” Where did you go wrong?

I’ve talked about the best ways to approach attorney’s fees here and here. And fees in an estate matter are covered here and here.

In the case of Evans v. Evans, handed down by the COA on April 26, 2011, you can find a pretty concise statement of the law that you need to know when pursuing a claim for attorney’s fees. The decision is unpublished, and can not be cited itself for authority, but Judge Maxwell did such a good job writing an exposition on the subject that I wanted to bring it to your attention.  Here are some excerpts from the opinion, paraphrased and supplemented with a couple of notes of mine:

The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). The appellate courts are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award. Smith v. Smith, 614 So.2d 394, 398 (Miss. 1993). Except in contempt actions, attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Voda v. Voda, 731 So.2d 1152, 1157 (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (Miss.  App. 2000).

When awarding attorney’s fees, chancellors must make specific findings regarding the recipient’s ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss. 1999). And chancellors should apply the McKee factors in determining the proper amount of the award:

(1) A sum sufficient to secure a competent attorney; (2) the skill and standing of the attorney employed; (3) the nature of the case and novelty and difficulty of the questions at issue; (4) the degree of responsibility involved in the management of the cause; (5) the time and labor required; (6) the usual and customary charge in the community; (7) and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767 (internal citation omitted).

Our supreme court has held that “[a] trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins, 729 So.2d at 1286.

The chancellor must also consider the paying party’s financial situation. Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate. Sarver v. Sarver, 687 So.2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss. 2000); see also Bell, at § 12.01[6] [b] (explaining that the chancellor should consider the parties’ financial disparity).

In addition, an award of attorney’s fees must be supported by sufficient evidence for an accurate assessment of fees. See McKee, 418 So.2d at 767 (reversing and remanding award based on insufficient evidence); Powell v. Powell, 644 So.2d 269, 276 (Miss.1994) (same). An itemized bill is not always required. Estimates may support an award in some circumstances if the estimates clearly explain “the method used in approximating the hours consumed on a case.” McKee, 418 So.2d at 767; see also Watkins v. Watkins, 748 So.2d 808, 813 (Miss. App. 1999). A chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So.3d 84, 87 (Miss. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria. Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss. 1985).

Attorney’s fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993). A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action.  Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006).

As for parentage cases, MCA § 93-9-45 provides that the “cost of the legal services of the attorney representing the petitioner … shall be taxed against the defendant.”

If you expect to be successful on a claim for attorney’s fees, you have to prove:

  1. That your client is entitled to an award. In contempt and parentage cases, the adjuducation of contempt or parentage will do the trick. In all other cases, you will have to show inability of your client to pay;
  2. Each of the McKee factors;
  3. Quantification of the fees by showing the time and effort expended;
  4. That the party you want to pay has the ability to pay.

Too many times I see attorneys put on a mere modicum of proof on the issue of getting paid. That’s a shame. Your client would appreciate it to no end if you found your pot of gold at the end of the other party’s rainbow.

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  • […] We’ve talked here before about the standard that the trial court is required to apply in order to justify an award of attorney’s fees. We’ve also addressed the steps you need to take to prove attorney’s fees. It’s not complicated. It just requires a little preparation and documentation. […]

  • […] and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is […]

  • […] and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here. Like this:LikeBe the first to like […]

  • Tim says:

    More and more attorneys are using flat fees, although that is not yet common in a contested divorce. It seems to me that doing so would create difficulty in justifying the award of attorney fees. Your thoughts?

    • Larry says:

      Good question. I still think you have to establish that the flat fee is reasonable under the McKee factors. Otherwise, there is no fact basis to support the judge’s decision. And, of course, there must be proof of the client’s inability to pay attorney’s fees.

      I am not sure how a flat fee would work in a divorce. If you charge, say, a $10,000 flat fee, and the case settles as an ID divorce before any serious work is done, perhaps the client was overcharged. Rule 1.5 of the RPC requires that a fee be reasonable, and even goes on to list the McKee factors as the standard to apply to determine reasonableness. On the other hand, if you charge a $2,000 flat fee and the case drags out through multiple depositions and numerous hearings, the lawyer will soon be bankrupt.

      I have heard of lawyers charging flat fees for each stage. X amount to file pleadings and negotiate a settlement as an ID divorce; X additional amount to go to a temporary hearing; X additional amount to propound and respond to discovery; X additional amount to Prepaare for trial; X additional amount for trial, etc., etc.

      In any event, I think the McKee factors and proof of your client’s inability to pay will have to underlie any fee arrangement in a divorce.

      Thanks for your comment.

  • […] fees on appeal because she did not prove inability to pay. I’ve posted here before about the necessity to prove inability to pay to support an award of attorney’s fees in non-contempt […]

  • randywallace says:

    By unpublished, are you referring to the fact that there is a petition for rehearing in the Evans case or that it was actually designated “not for publication?” I was under the impression that all of the newer cases were published pursuant to MRAP 35 A(a) and 35 B(a).

    • Larry says:

      The Westlaw version has the heading that it is an unpublished opinion that may not be cited. That means it is not released for publication in the Southern Reporter. Some opinions are not published for a variety of reasons.

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