attorney’s fees | The Better Chancery Practice Blog

STUNG BY ATTORNEY’S FEES

August 7, 2012 § 2 Comments

The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.

The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.

The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:

¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:

There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).

See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).

¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”

¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).

¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.

The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors 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.

PROTECTING YOUR ATTORNEY’S FEES AWARD IN A DIVORCE CASE

April 9, 2012 § 5 Comments

When you have worked hard on a case and prevailed, you’d like to be adequately compensated. You put on your proof of attorney’s fees and the judge makes a handsome award. Only problem is, the other side appeals and the COA tosses out your award, much to your chagrin. How should you have bulletproofed that award?

In the case of Alexander v. Alexander, decided March 27, 2012, the chancellor had awarded Amanda Alexander a judgment for nearly $32,000 in attorney’s fees in a divorce action against her husband, Khari. The COA reversed the special chancellor’s decision for failure of to make any findings of inability to pay or about the reasonableness of the request. Here’s what the opinion said on the point:

“An award of attorney[’s] fees is a matter largely within the sound discretion of the chancellor.” Dickerson v. Dickerson, 34 So. 3d 637, 648 (¶43) (Miss. Ct. App. 2010) (citing Smith v. Smith, 614 So. 2d 394, 398 (Miss. 1993). “Attorney[’s] fees should only be awarded in an amount that compensates for services rendered.” Id. at (¶44) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). The factors to be analyzed in determining whether to award attorney’s fees include: (1) “the relative financial ability of the parties;” (2) “the skill and standing of the attorney employed,” (3) the novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) “the time and labor required,” (6) “the usual and customary charge in the community,” and (7) whether the attorney was precluded from undertaking other employment by accepting the case. McKee, 418 So. 2d at 767.

¶15. The testimony showed Khari earned approximately $90,000 a year; however, Khari did not file a financial statement pursuant to Uniform Chancery Court Rule 8.05. Amanda asserts that her inability to pay her attorney’s fees was proven because the chancellor found her household expenses exceeded her income. The chancellor made no findings of fact on the issue of her inability to pay or Khari’s ability to pay. An itemized bill from Amanda’s attorney is included in the record; however, the chancellor did not examine the reasonableness of the fees. Before attorney’s fees are awarded, the chancellor must determine if the fees were fair, reasonable, and necessary. Dickerson, 34 So. 3d at 648 (¶44) (citing McKee, 418 So. 2d at 767). Since the chancellor failed to make findings pursuant to the McKee factors, we also reverse and remand on this issue.

In a divorce case, the party seeking an award of attorney’s fees must prove inability to pay. Deen v. Deen, 856 So.2d 736, 739 (Miss.App. 2003); Duncan v. Duncan, 915 So.2d 1124, 1128 (Miss.App. 2005); Sullivan v. Sullivan, 43 So.3d 536, 541 (Miss. App. 2010). Ability of the opposing party to pay must also be considered. Sarver v. Sarver, 687 So.2d 749, 756 (Miss. 1997).

Interestingly, the COA decision had already reversed and set aside the divorce in Alexander for failure to prove grounds before it addressed the award of attorney’s fees. There is no mention of the effect of that reversal on the fee award.

So what could counsel here have done to protect the attorney’s fees? Here are a few suggestions:

It’s axiomatic that if you don’t put on the proper proof, the chancellor will not have the basis to make an adequate ruling. Print out the McKee factors and address every single one of them in your testimony. Don’t skip or skimp on anything! There is case law to the effect that, even if the chancellor never mentions McKee, he will presumed to have considered the factors IF there is evidence in the record that supports the award.
Make sure you have adequate time records or other documentation in support of your testimony as to time spent, expenses, work done, and put your records into evidence. Here is a link to a helpful post on what you need to prove to get that award of attorney’s fees.
If you feel that the chancellor has not made sufficient findings, file a Rule 59 motion and ask the judge to supplement his findings. Better yet, provide him or her with proposed findings of fact and conclusions of law on the point that address every applicable McKee factor.

When you have worked hard on a case, you want and deserve to be paid. Sometimes your client won’t be able to pay you, and your only realistic option is to look to the other party. Don’t leave it to chance. Make a bulletproof record.

THE HIGH PRICE OF A LITIGATION MISFIRE

March 19, 2012 § Leave a comment

Litigation Misfire. (noun): 1. Litigation that fails to ignite at the proper point 2. A case that blows up in one’s face. 3. Any case in which none or few of the positive points your client told you about her case ever materializes at trial.

We’ve all had our misfires. No need to catalog them here. Some misfires happen despite your best efforts and most professional approach to the case. Others are the direct result of a lawyer’s failure to do his homework. When the misfire falls in the latter category, it can dearly cost your client, or you, or both of you. The cost of a misfire can be a daunting thing.

In the COA case of McKnight v. Jenkins, decided March 13, 2012, the tab came to $23,969.17. Here is what Judge Lee’s opinion said, beginning at ¶ 14:

“The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So. 2d 1285, 1290 (¶25) (Miss. Ct. App. 2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp. 2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So. 2d 764 (Miss. 1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.

¶15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 93-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So. 2d 779, 782 (¶8) (Miss. Ct. App. 2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.”

You can add to the ouch factor in this case the fact that Holly was unemployed at the time she was assessed these fees and costs. It matters not what her ability to pay is when the fees are assessed for contempt.

It goes without saying, or should, that you need to investigate the claims that your client brings to you, no matter how tempting that cash retainer looks. MRCP 11(a) specifically says that when the attorney signs the pleading as required:

The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

Those words are there for a reason. They impose an important and serious duty on you as an officer of the court not to burden the courts, opposing parties and counsel with frivolous or unfounded matters, to limit your pleadings only to those that genuinely state a cause of action, and to do your homework before you ever set the wheels of the courts in motion.

The payback for not complying with MRCP 11(a) is set out in MRCP 11(b). It’s interesting reading, and I won’t spoil the surprise for you by repeating it here, but you really should read it for yourself and not hear it for the first time from the bench. On March 15, 2012, the Mississippi Supreme Court upheld 11(b) sanctions in a case out of Rankin County, In Re Guardianship of B.A.D., which reversed and remanded on other grounds. You should read that case for its exposition of what it is like to face the wrath of a chancellor.

Don’t overlook Rule 2.1 of the Rules of Professional conduct, which requires you to act as an advisor to your client. As I have said here many times, you are not a mere clerk-typist for your client. Nor are you merely your client’s robotic alter ego. You are an independent professional whose highest duty is to advise. As a wise man once said, “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”

MCA § 93-5-23 states “If, after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in response to such allegations.” The chancellor in McKnight could possibly have relied on that section, since he found the allegations to have been without foundation. I have taken the position that all of the elements of the statute have to be present in order to require the imposition of sanctions; i.e., there must be an investigation by DHS or final disposition by a youth court or family court, with a finding that the charges are without foundation. I refused to impose the statutory sanctions in a case where DHS found that the charges could not be substantiated because, by the time they investigated, the bruises on the child were too faded to make a clear finding. The fact that there were bruises convinced me that the charges were not “without foundation” within the meaning of the law, and DHS did not say they were without foundation. To me, sanctions should be carefully limited to appropriate cases so as to avoid a chilling effect on family members, neighbors, doctors, school officials and others who are in a position to report and perhaps put a stop to child abuse.

The Litigation Accountability Act, MCA 11-55-1, et seq. is something else to watch out for. It provides a cause of action against an attorney or party for meritless action, claim or defense, or for unwarranted delay or for “unnecessary proceedings.”

A caveat … the fact that I personally set a high threshhold for sanctions should not lead you to relax your standards. Professionalism demands it. And as a practical matter, your judge may see sanctions differently. I once saw a judge pop a lawyer, not her client, with a $1,500 sanction for failure to answer interrogatories after being ordered to do so. And I myself even assessed more than $20,000 in a case that had been tried by my predecessor, and which was reversed and remanded on a finding of no jurisdiction; the case law is clear that to pursue a case where there is no jurisdiction after you were put on notice is sanctionable, even where the chancellor allowed you to proceed to final judgment.

In my opinion, all sanctions should be judiciously weighed and never lightly imposed. Some lawyers seem to add requests for sanctions to almost every pleading they file, although those requests are, wisely, seldom presented for adjudication. Seems to me that the old saw, “what goes around comes around,” has particularly apt application to this subject.

CLARIFYING ATTORNEY’S FEES IN CONTEMPT ACTIONS

January 19, 2012 § Leave a comment

I’ve talked here before about some confusion (in my opinion) on the part of the COA as to the criteria to award attorney’s fees in contempt cases as opposed to other cases. The question that gave rise to the confusion was whether proof of the McKee factors and/or inability to pay would be required to support an award of attorney’s fees in a contempt action.

In Williamson v. Williamson, decided January 10, 2012, the COA set the record straight. Judge Carlton’s opinion sets it out at ¶ 28:

Furthermore, we find no merit to Will’s contention that the chancellor erred in awarding attorney’s fees to Mary due to a lack of consideration of the McKee analysis. Will’s argument fails to differentiate the chancellor’s award of attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So. 2d 486, 490 (¶13) (Miss. 2005), the Mississippi Supreme Court explained that, generally, in divorce actions, appropriate attorney’s fees are awarded in an amount to secure a competent attorney. However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id.; see also Patterson, 20 So. 3d at 73 (¶26) (stating that an award of attorney’s fees is appropriate when there is a finding of contempt, and “[n]o showing as to the McKee factors is required”); Bounds v. Bounds, 935 So. 2d 407, 412 (¶18) (Miss. Ct. App. 2006). As stated, Mary introduced an itemization of attorney’s fees into evidence at trial. Will failed to provide sufficient evidence showing that the attorney’s fees testified to by Mary were unreasonable. Therefore, we find no abuse of discretion by the chancellor in finding Will in contempt and in awarding Mary the attorney’s fees she incurred in bringing her petition for contempt. See Mabus, 910 So. 2d at 489 (¶8) (“Where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[’s] fees and expenses should be awarded to the wronged party.”).

I think that language pretty well clarifies the law on the point. In contempt cases, contrary to other cases such as divorce, proof of the McKee factors is not required, nor is proof of inability of the wronged party to pay; however, you must put on proof to show the fees incurred and the reasonableness so that the trial judge has some objective standard to apply.

There is one often overlooked avenue for establishing the reasonableness of attorney’s fees. It’s set out in MCA 9-1-41, which reads as follows:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided, however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

In my opinion, the statute is something you can use to your advantage in a contempt case, since McKee proof is not required. But be careful in trying to apply it in other kinds of cases. In Doe v. Doe, 644 So.2d 1199, 1209 (Miss. 1994), the supreme court said:

It is true that Miss.Code Ann. § 9-1-41 (1972) allows an award of attorney fees based “on the information already before it and the court’s own opinion.” However, such discretion still requires some guidelines. Guidelines help to insure that the chancellor’s award is based on factual information and is not arbitrary. This Court accordingly holds that chancellors should grant attorney fees under Miss.Code Ann. § 9-1-41 (1972) after considering the factors for attorney fees as stated in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

Doe was not a contempt case. It was an action for termination of visitation rights based on allegations of sexual abuse. In non-contempt actions the rule is that you will need to put on the proof required by the case law. In divorce cases, for example, that means proof of the client’s inability to pay as well as McKee proof.

REVISITING TRIAL CHECKLISTS

November 22, 2011 § 2 Comments

Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.

I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.

Here is a list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.

Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.

A QUESTION OF ATTORNEY’S FEES ON APPEAL

August 17, 2011 § 5 Comments

Ed McDonald filed for divorce from his wife, Cindy. Cindy counterclaimed for separate maintenance. The ultimate result was that the chancellor denied Ed a divorce and granted Cindy separate maintenance.

Ed did not pay as the court ordered, and he filed a motion to terminate the obligation. Cindy responded with a petition to hold Ed in contempt for non-payment of six months of separate maintenance. The chancellor rejected Ed’s plea to terminate the payments, found him in contempt, awarded Cindy a judgment for the arrearage, and ordered Ed to pay Cindy $1,000 in attorney’s fees based on the finding of contempt. In making the attorney fee award, the trial judge stated:

“The finding of contempt in this matter as to the separate maintenance payments permits the Court to require the party in contempt to pay reasonable attorney’s fees to the innocent party. The award is based on the contempt and not the inability to pay. Therefore, the Court orders [Ed] to pay $1,000 to [Cindy] as attorney’s fees for his failure to pay the monthly separate maintenance as ordered by this Court.”

Ed appealed both from the denial of termination of separate maintenance, and from the adjudication of contempt. In the case of McDonald v. McDonald, decided August 16, 2011, the COA affirmed the chancellor on the refusal to terminate separate maintenance and the adjudication of contempt.

Cindy, then, was the prevailing party in the appeal, and she asked the COA to award her an attorney’s fee for having to defend the appeal. Indeed, there is a long line of cases holding that the appellate court will award the prevailing party an appeal attorney’s fee in an amount equal to one-half that awarded by the trial judge. See, e.g., Quin v. Quin, 215 So.2d 414, 415 (Miss. 1968); Smith v. Smith, 293 So.2d 466, 469 (Miss. 1974); and Poole vs. Poole, 701 So.2d 813, 819 (Miss. 1997).

Based on the chancellor’s ruling on the attorney’s fee, Cindy would reasonably expect the COA to award her an attorney’s fee in the sum of $500 for prevailing in the appeal.

In this case, though, the COA brushed aside Cindy’s request with this language (at ¶17): “The chancellor specifically held that the attorney’s fees awarded to Cindy are based on the fact that Ed was in contempt ‘and not on the inability to pay.’ Because precedent dictates that attorney’s fees are based on ‘necessity and not entitlement,’ and the chancellor did not find that attorney’s fees awarded to Cindy were based on an inability to pay her attorney, we decline to award Cindy any attorney’s fees on appeal.”

The opinion cites Monroe v. Monroe, 745 So.2d 249, 253 (Miss. 1999) at ¶ 17, as authority for its statement that “attorney’s fees are based on necessity rather than entitlement.” Monroe is the only case cited by the court. Monroe was a divorce case in which the MSSC reversed and rendered on a finding that Mrs. Monroe had been denied alimony improperly. It was not a contempt case. The court found that Mrs. Monroe was not entitled to attorney’s 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 actions.

The rule is different in contempt actions, however. 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). It is not even necessary for the McKee factors to be proven in a contempt case. Mixon v. Mixon, 724 So.2d 956, 964 (Miss. App. 1998). Attorney’s fees are properly assessed against a party found to be in contempt, Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993), to compensate the party wronged for having to retain counsel.

In Bounds, the COA spelled out the distinction:

Sam’s argument fails to differentiate awarding attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So.2d 486 (Miss.2005), the court addressed this issue. The trial court held a mother in contempt for failure to return the children to the father’s custody. Like Sam, the mother contended that the attorney’s fees the court awarded to the father for the contempt action were unreasonable because the court did not use the McKee factors. The general rule in divorce and child custody actions is that appropriate attorney’s fees should be awarded in an amount to secure a competent attorney. Id. at 490(13). However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id. (citing Rogers v. Rogers, 662 So.2d 1111, 1116 (Miss.1995)). “When a party is held in contempt for violating a valid judgment of the court, then attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Elliott, 775 So.2d at 1290(25).

It looks to me like the chancellor in McDonald properly assessed attorney’s fees based on the sanction for contempt, as he was permitted to do under the great weight of authority. The chancellor was not required to find inability to pay. Why, then, was the customary appellate fee disallowed under a standard different than that which applied in the trial court? Ed appealed from the contempt finding and Cindy prevailed on the appeal. Should she not have been entitled to the customary one-half attorney fee award to the prevailing party?

I hope this decision does not mean that in contempt actions parties will have to put on proof of inability to pay purely in anticipation of an appeal, since that finding is not necessary for the trial judge to assess a fee on a finding of contempt. It’s irrational to me for one standard to apply at trial and another on appeal.

Cindy is only out $500 in this case, but what if the fees had been $12,500? Something else to think about as you go about making your trial court record in a contempt case.

THE POT OF GOLD AT THE END OF THE RAINBOW

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:

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;
Each of the McKee factors;
Quantification of the fees by showing the time and effort expended;
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.

TRIAL BY CHECKLIST: ATTORNEY’S FEES IN AN ESTATE

March 16, 2011 § 15 Comments

A practice tip about trial factors is here.

I previously posted here about what it takes to comply with the UCCR to document your claim for attorney’s fees in an estate.

Ordinarily, attorney’s fees claims are governed by the factors in McKee v. McKee, but in an estate, the factors are slightly, but significantly, different.

In estate matters, the proper factors to consider in determining reasonable attorney’s fees are:

The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
The fee customarily charged in the locality for similar legal services;
The amount involved and the results obtained;
The time limitation imposed by the client or by the circumstances;
The nature and length of the professional relationship with the client;
The experience, reputation and ability of the lawyer or lawyers performing the services; and
Whether the fee is fixed or contingent.

In re Estate of Johnson v. Moore, 735 So. 2d 231, 237 (¶27) (Miss. 1999) (quoting Moreland v. Riley, 716 So. 2d 1057, 1062 (¶16) (Miss. 1998)).

In the case of Catchings v. Estate of McCullough, decided March 15, 2011, the COA reviewed a chancellor’s decision that reduced attorney’s fees in an estate. The attorney claimed $88,000 in fees in connection with a $300,000 estate, but the chancellor found that the amount of work done did not warrant that amount of fees and reduced the fee award to $36,000, based on application of the Johnson factors stated above. The COA found no abuse of discretion and upheld the chancellor’s determination.

If you have an exceptionally large claim for attorney’s fees in an estate, it would be a good idea to attach your and a fiduciary’s affidavit itemizing the time spent and addressin each of the Johnson factors.

ATTORNEY’S FEES IN AN ESTATE

January 19, 2011 § 2 Comments

Every administrator or executor is required by Uniform Chancery Court Rule (UCCR) 6.10 to have an attorney to represent him or her in connection with administration of the estate.

The attorney’s fees of the administrator or executor are not the obligation of the estate, but are the personal obligation of the fiduciary, but they may be allowed by the court as part of the administration expenses. Scott v. Hollingsworth, 487 So.2d 811, 813 (Miss. 1986). In order to be properly allowed by the court as administration expense, the attorney’s fees must benefit the estate, and fees which do not benefit the estate are properly disallowed. Estate of Collins v. Collins, 742 So.2d 147, 149 (Miss. App. 1999).

In making his determination of an attorney fee award, the chancellor must weigh several factors:

“The factors which the chancery court considers in fixing the amount of reasonable compensation are varied. Among those factors, however, are the following: time, skill, the responsibility, the monetary value of the estate administered and its liquidity, the speedy disposition of the business, the services of the attorney, the practice of attorneys in that court and the charging of fees for similar services, the complexity of the issues, and the necessity of litigation concerning the estate business.” Scott at 814.

I disallowed a claim of more than $20,000 for attorney’s fees in an estate where no action had been taken in 18 months after the qualification of the fiduciary, the fiduciary and not the attorneys had done most of the work, the attorneys were charging more than $350 an hour, the reasonable hourly rate in this district is $185, the estate was fairly simple and should have been closed in less than a year, and a substantial portion of the fees were attributable to the fiduciary resisting the sole beneficiary’s efforts to have him ousted for inaction.

If you want to get paid for your services to the fiduciary, you had better become very familiar with UCCR 6.11 and 6.12.

This judge will require that an itemized statement of services rendered by filed in the court file and, preferably, be attached as an exhibit signed and sworn by the fiduciary. The old practice of filing a broad, general statement of services without showing the time expended, is no longer acceptable. The purpose of an itemized statement is to disclose to all interested parties what services were rendered for the benefit of the estate, and to allow them an opportunity to be heard, pro or con. The best practice in a final account is to attach the attorney fee statement as an exhibit to the petition to close so that all interested parties will have notice and opportunity to agree by joining in the petition or to contest it.

If the petition for fees is based on recovery of damages for wrongful death, UCCR 6.12 imposes some specific and stringent requirements. The fee allowed ” … will be fixed by the chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons.” Any agreement for a contingent fee must be approved in advance by the chancellor. In other words, if you don not get your contract approved in advance, you will be working on a quantum meruit basis rather than on a contingency.

A CHECKLIST OF CHECKLISTS

December 15, 2010 § Leave a comment

Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist.

Here are the checklists I’ve posted (you can click on the links to get to them):