Proof of Attorney’s Fees in a Mixed Action

July 16, 2018 § Leave a comment

Mark Campbell filed a combined contempt and modification action against his ex-wife, Misty. She counterclaimed. Following a hearing the chancellor granted relief and awarded Misty $4,141.97 in attorney’s fees. Mark appealed several issues, the attorney’s fee award among them.

In Campbell v. Campbell, decided June 19, 2018, the COA reversed and remanded the attorney’s fee award because there was insubstantial proof of what portion of the fees was attributable to defending the modification, and what was incurred in pursuing the contempt. Judge Tindell wrote the opinion:

¶17. Mark next challenges the chancellor’s award of $4,141.97 in attorney’s fees to Misty. After finding Mark’s allegations of abuse and neglect against Misty lacked evidentiary support, the chancellor ordered Mark to pay the fees Misty incurred defending against the unsubstantiated claims. See Miss. Code Ann. § 93-5-23 (Rev. 2013). Mark asserts on appeal, however, that Misty’s attorney never separated the fees incurred defending against the abuse and neglect allegations from the fees incurred litigating other matters. Since the chancellor only ordered Mark to pay the attorney’s fees related to the litigation of the abuse and neglect allegations, Mark argues the chancellor abused his discretion by failing to
separate those fees from the “fees otherwise incurred in Misty’s defense of Mark’s request for decreased child support and pursuit of her own request for increased child support.”

¶18. The decision to award attorney’s fees is largely entrusted to a chancellor’s sound discretion. Evans v. Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). After finding Mark’s claims of abuse and neglect to be unsubstantiated, the chancellor was well within his authority to award Misty the attorney’s fees she incurred defending against the allegations. See Miss. Code Ann. § 93-5-23. However, the chancellor never made a finding that Misty lacked the ability to pay her attorney’s fees incurred litigating other matters. See Ewing v. Ewing, 203 So. 3d 707, 716 (¶33) (Miss. Ct. App. 2016) (“Generally, unless the party requesting attorney’s fees can establish [an] inability to pay, such fees should not be awarded.” (quoting Bredemeier v. Jackson, 689 So. 2d 770, 778 (Miss. 1997))). As a result, we find the chancellor abused his discretion by failing to separate the attorney’s fees Misty incurred defending against Mark’s allegations of abuse and neglect from those fees incurred litigating other matters. We therefore reverse this portion of the chancellor’s judgment and remand the issue so the chancellor may determine which attorney’s fees Misty incurred defending against Mark’s unsubstantiated allegations.

Here’s the deal: the standard that the judge is to apply in awarding attorney’s fees for a modification, or for a divorce for that matter, is different than the standard for an award of attorney’s fees for contempt. That is why you must put on proof of the amount of time devoted on the one hand to the modification issues, and on the other to the contempt issues. For modification, you will have to show your client’s inability to pay. For contempt, you merely have to make your prima facie case that the other party was not in compliance with the court order when the suit to enforce was filed.

Caveat: The reasonableness of the attorney’s fee award is reviewed in relationship to the McKee factors. A post dealing with this is at this link. You should always include proof of the McKee factors, even in contempt cases, because you want to make your attorney’s fee awards as bullets-proof as possible.

July 9, 2018 § Leave a comment

State Bar Convention this week

Next post July 16, 2018

“Quote Unquote”

July 6, 2018 § 5 Comments

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  —  Justice Anthony Scalia, majority opinion in District of Columbia v. Heller.

“No freedman, Negro, or Mulatto shall carry or keep firearms or ammunition.”  —  Mississippi Black Code (1865)

“There’s no reason why on the street today a citizen should be carrying loaded weapons.”  —  Ronald Reagan, commenting on armed Black Panthers demonstrating in California

July 4, 2018 § Leave a comment

State Holiday

Courthouse closed

 

Limited Scope Representation and Disclosure of Services

July 3, 2018 § Leave a comment

Before limited-scope representation, I think it was pretty clear that a lawyer who prepared papers for a person to use in court had to show on the paperwork that he had prepared it.

Since limited-scope representation, the answer has been unclear. Until now.

The Mississippi Board of Bar Commissioners has addressed the question with an Ethics Opinion. The text of it is here:

ETHICS OPINION NO. 261
OF THE MISSISSIPPI BAR
RENDERED JUNE 21, 2018

The Ethics Committee has asked to respond to two questions:

Is it ethical for a lawyer to prepare documents for pro se litigants?

If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

APPLICABLE RULES

Rules 1.2 and 8.4(c) of Professional Conduct are applicable to this opinion. The relevant portion of these Rules provide:

Rule 1.2 Scope of Representation

(c) A lawyer may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Comment

Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

Limited scope representation is an important means of providing access to justice for all persons regardless of financial resources. Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record. Within litigation, lawyers may limit representation to attend a hearing on a discrete matter, such as a deposition or hearing, or to a specific issue in litigation.

Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1

And,

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

ANALYSIS

(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?

Yes. The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client. Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation. This is commonly referred to as unbundled legal services. It is important for lawyers to remember two important aspects of this type of limited scope representation. First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation. Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation. For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.

(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

No. The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer. Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c).[1] The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance. As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unware of the limited representation provided.

While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c). A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement. If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document. The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance. The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.

There are two additional points to make about this opinion. The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure. This opinion contemplates that the lawyer is performing discrete aspects of representation. On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c). Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.

Writing Tools that Every Lawyer Needs to Have

July 2, 2018 § 7 Comments

Judge Griffis had this post on his blog last month, and I think it’s a list that both lawyers and judges can benefit from.

16 books judges should own if they want to write well

Here is a link to an article from the National Judicial College. Yes, 16 books you need to own.

By Julie Oseid and Randall Tietjen

Three conventional dictionaries:

1.  Merriam Webster’s Collegiate Dictionary (10th edition) [Now in its Eleventh Edition]
2.  The Oxford English Dictionary (5th edition)
3.  The American Heritage Dictionary (6th edition) [Could not find a link to the 6th, even on Amazon; this link is to the 5th]

One legal dictionary:

4.  Black’s Law Dictionary (10th edition)

Two English usage books:

5.  Modern English Usage by H.W. Fowler
6.  Garner’s Modern English Usage

One legal usage book:

7.  Garner’s Dictionary of Legal Usage

Three style guides:

8.  The Chicago Manual of Style. Good advice on punctuation and style, plus handy information about copyright and fair use.
9.  The Redbook: A Manual on Legal Style by Bryan Garner
10.  Plain English for Lawyers by Richard Wydick

Beyond the reference books:

11.  Elements of Style by Strunk & White. This book has likely been on your bookshelf since college, but it is well worth revisiting with some regularity.
12.  On Writing Well by William Zinsser. This book will make you want to be a better writer.
13.  On Writing by Stephen King. Yes, that Stephen King.
14.  The Sense of Style by Steven Pinker
15.  30 Days to Better English by Norman Lewis. Good for improving your vocabulary.
16.  Typography for Lawyers by Matthew Butterick. It explains how effective communication depends on document design, including how words look on a page.

My only pushback is three dictionaries. For most of us, one good one is all you need. And I think the OED is overkill; unless you’re serious about etymology and harbor a secret ambition to be an English scholar, or unless you just want to appear scholarly and impress academics, you’d do just fine with either of the more popular dictionaries.

Speaking of dictionaries, I read Word by Word: The Secret Life of Dictionaries, by Kory Stamper, a lexicographer with Webster who describes how words are selected to be included or excluded in a dictionary, as well as many other arcane facts about them (I know, I am a nerd). As she points out, Webster’s philosophy is to include words and usages as they come into the mainstream of the language (e.g., “waiting on” has become predominant in everyday language as a synonym for “awaiting” as well as “serving,” and either is proper usage) rather than the philosophy of American Heritage, which is to defend proper usage against all incursions (e.g., “waiting on” means serving, not awaiting, and it is improper to use the term in the latter sense).

I have to sympathize with Judge Griffis on at least one salient point: he sees a lot more of lawyers’ writing than I do. What comparatively little I see is sometimes unclear, rife with grammatical and usage errors, and downright unenjoyable to read, so that I just skip to the citations and read the cases.

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