No Attorney’s Fees for You After All

August 20, 2019 § Leave a comment

Nat Alford and his wife Linda consented to a divorce on the ground of irreconcilable differences, leaving it up to the chancellor to adjudicate several issues, including whether Linda should be awarded attorney’s and expert-witness fees. Linda testified that she had been “struggling” to make monthly payments against the more than $24,000 billed by her attorney.

The chancellor ordered Nat to pay $5,000 toward Linda’s attorney’s fees, and $6,000 toward expert witness fees. Nat appealed, and one issue he raised was that the award was erroneous.

The COA reversed and rendered in Alford v. Alford, decided July 23, 2019. Judge Jack Wilson wrote for the majority:

¶31. “An 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). “The party seeking attorney’s fees is charged with the burden of proving inability to pay.” Riley v. Riley, 846 So. 2d 282, 287 (¶23) (Miss. Ct. App. 2003) (citing Jones v. Starr, 586 So. 2d 788, 792 (Miss. 1991)). “It is well settled in Mississippi that if a party is financially able to pay an attorney, an award of attorney’s fees is not appropriate. Furthermore, if the record is insufficient to demonstrate the wife’s inability to pay the attorney’s fees, then an award of the fees is an abuse of discretion.” Gray, 745 So. 2d at 239 (¶26) (citations omitted).

¶32. At trial, Linda offered a list of invoice amounts prepared by her attorney that showed that he had billed her a total of $24,572.94, which included the trial. Linda also requested expert witness fees (for Paris) in the amount of $6,000. Linda and her attorney both testified that she had been paying $1,000 per month in attorney’s fees, although neither of them could say how much she had paid in total. Linda also testified that she had been paying $500 per month to Paris’s firm, although she did not state how much she had paid or how much was left to pay. Linda testified that she had been able to make her monthly payments to her attorney and expert, although she said that she had “been struggling to” do so. Linda’s attorney testified regarding his time and fees and Linda’s ability to pay. On cross examination, he was asked whether the equitable distribution of the marital assets would provide Linda with sufficient “financial resources to pay [her fees].” In response, he stated, “I would certainly hope that the [c]ourt awards [Linda] what [she] requested, which is 50 percent of the marital assets. If that occurs, then she certainly would have the money to pay me at that time. I would agree with that.”

¶33. Following the trial, the chancellor found that Linda had the ability to pay some but not all of her attorney’s fees. The chancellor then ordered Nat to pay her $5,000 for attorney’s fees and $6,000 for expert witness fees.

¶34. We conclude that the award of attorney’s fees and expert witness fees was an abuse of discretion because “the record is insufficient to demonstrate [Linda’s] inability to pay.” Gray, 745 So. 2d at 239 (¶26). Linda testified that she had been able to pay her attorney’s fees and expert witness fees in monthly installments of $1,000 and $500, respectively, and she failed to show how much she had already paid or what she still owed. In addition, Linda was awarded bank accounts with a combined balance of approximately $17,000, a Merrill Lynch account with a balance of $134,115.06, and retirement accounts with a combined balance in excess of $375,000. Linda received nearly half of the marital assets, which her attorney agreed would be sufficient to allow her to pay her attorney’s fees. There is nothing in the record to show that Linda would have been required to liquidate any significant part of her savings to pay her attorney or her expert. Indeed, as stated, the record does not even show what Linda owed at the time of trial. On these facts, Linda failed to meet her burden of establishing an inability to pay her fees. See, e.g., Dauenhauer v. Dauenhauer, 271 So. 3d 589, 601 (¶51) (Miss. Ct. App. 2018) (holding that award of attorney’s fees was an abuse of discretion where the spouse had already paid part of his fees in installments and had sufficient assets to pay the balance). Accordingly, the award of attorney’s fees is reversed and rendered.

” … [S]he failed to show how much she had already paid or what she still owed.” So how could one expect the chancellor to make an accurate ruling? I will reiterate what I have said here many times: if you expect to get your client an award of attorney’s fees you have to put some time and thought into what it will take to prove entitlement to that award. Close will not get the cigar. Slapdash won’t even come close.

The chancellor clearly concluded that Linda should have help with some of her attorney’s and expert fees. What the chancellor was not given to support her conclusion, however, was: (1) the amounts Linda had paid; (2) the remaining balances; (3) more detail about the financial strain the fees had imposed on her; and (4) what financial impact it would have on her equitable distribution to have it reduced by attorney’s fees.

I also thought it was interesting that Linda’s attorney was allowed to testify, apparently without objection, to Linda’s ability to pay. That, to me, is a fact issue in the case, and attorneys are not allowed by ethics to be fact witnesses except as to what they are owed in attorney’s fees. I have stopped attorneys in situations like that and directed them to limit their testimony to how much is owed, what services were rendered, what has been paid, and the employment contract. Maybe that’s just me.

Forbes v. St. Martin Reversed

May 27, 2014 § 10 Comments

Back in March, 2013, the COA reversed a chancellor’s ruling that granted summary judgment in favor of a Louisiana lawyer in a legal malpractice claim based primarily on a claim of breach of attorney-client fiduciary duties. The COA’s ruling in Forbes v. St. Martin was the subject of a post on this blog.

The MSSC, on May 22, 2014, reversed the COA’s ruling, reinstating and affirming the chancellor’s grant of summary judgment in the case.

If you do any contingent fee work, you should read this opinion. Also, Justice Lamar, for the majority, includes an interesting exposition on the principle that a lawyer’s violation of the Rules of Professional Conduct in and of itself does not necessarily give rise to a cause of action for malpractice against the lawyer.

In my 2013 post, I spelled out how fractured the COA was in its vote. Here’s what the MSSC’s looked like:

WALLER, C.J., KITCHENS AND KING, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR AND KING, JJ.; WALLER, C.J., JOINS IN PART. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND COLEMAN, JJ. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND CHANDLER, J. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.

So it was: Lamar, Waller, King and Kitchens for the majority; Dickinson, Chandler and Coleman in the minority; and Randolph and Pierce on the sidelines.

As I have said in both of these posts, there are many ethical and professionalism overtones in this case that you may find helpful, especially in the current trend in which others pore over lawyers’ work after the fact looking to discover anything actionable.

REMINDER: THE LAWYERS CREED AND ASPIRATIONAL IDEALS

December 21, 2010 § 2 Comments

A LAWYER’S CREED

To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.

To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek to fairly resolve differences and, if we fail to reconcile disagreements, I will strive to make our dispute a dignified one.

To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.

To my colleagues in the practice of law, I offer concern for your reputation and well being. I will extend to you the same courtesy, respect, candor and dignity that I expect to be extended to me. I will strive to make our association a professional friendship.

To the profession, I will strive to keep our business a profession and our profession a calling in the spirit of public service. 

To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through effective and ethical representation of my clients.

 

ASPIRATIONAL IDEALS

As a lawyer, I will aspire:

(a) To put fidelity to clients and, through clients, to the common good, before my personal interests.

(b) To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution processes.

(c) To pursue the goals of equality and fairness in my personal and professional activities.

(d) To preserve and improve the law, the legal system, and other dispute resolution processes as instruments for the common good.

(e) To make the law, the legal system, and other dispute resolution processes available to all.

(f) To practice with a personal commitment to the rules governing our profession and to encourage others to do the same.

(g) To preserve the dignity and the integrity of our profession by my conduct. The dignity and the integrity of our profession is an inheritance that must be maintained by each successive generation of lawyers.

(h) To achieve excellence in my work.

(i) To practice law not only as a business, but as a calling in the spirit of public service.

As to clients, I will aspire:

(a) To expeditious and economical achievement of client objectives.

(b) To fully informed client decision-making. As a professional, I will:

          (1) Counsel clients about various forms of dispute resolution;

          (2) Counsel clients about the value of cooperation as a means towards 
                the productive resolution of disputes;

          (3) Maintain the sympathetic detachment that permits objective and independent
                advice to clients;

          (4) Communicate promptly and clearly with clients; and

          (5) Reach clear agreements with clients concerning the nature of the
                representation.  

(c) To fair and equitable fee agreements. As a professional, I will:

          (1) Consider and discuss with clients alternative fee arrangements as may be 
                appropriate in the circumstances;

          (2) Reach fee agreements with clients as early in the relationship as possible;
                and

          (3) Determine the amount of fees by consideration of many factors and not just
                time spent by the attorney.

(d) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve the fidelity to clients.

(e) To achieve and maintain a high level of competence in my fields of practice.

As to opposing parties and their counsel, I will aspire:

(a) To cooperate with opposing counsel in a manner consistent with the competent representation of my client. As a professional, I will:

        (1) Notify opposing counsel in a timely fashion of any canceled appearance;

        (2) Grant reasonable requests for extensions or scheduling changes; and

        (3) Consult with opposing counsel in the scheduling of appearances, meetings,
             and depositions.

(b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. As a professional, I will:

        (1) Not serve motions or pleadings in such a manner or at such a time as to
             preclude opportunity for a competent response;

        (2) Be courteous and civil in all communications;

        (3) Respond promptly to all requests by opposing counsel;

        (4) Avoid rudeness and other acts of disrespect in all meetings including
             depositions and negotiations;

        (5) Prepare documents that accurately reflect the agreement of all parties; and

        (6) Clearly identify all changes made in documents submitted by opposing
             counsel for review.

As to the courts, other tribunals, and to those who assist them, I will aspire:

(a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient, and humane system of justice. As a professional, I will:

       (1) Avoid non-essential litigation and non-essential pleading in litigation;

       (2) Explore with clients and opposing parties the possibilities of settlement of
             litigated matters;

       (3) Seek non-coerced agreement between the parties on procedural and
            discovery matters;  

       (4) Avoid all delays not dictated by a competent presentation of a client’s claims;

       (5) Prevent misuses of court time by verifying the availability of key participants for 
            scheduled appearances before the court and by being punctual; and

       (6) Advise clients about the obligations of civility, courtesy, fairness, cooperation,
            and other proper behavior expected of those who use our systems of justice.

(b) To model for others the respect due to our courts. As a professional, I will:

       (1) Act with complete honesty;

       (2) Know court rules and procedures;

       (3) Give appropriate deference to court rulings;

       (4) Avoid undue familiarity and any appearance or claim of any undue influence
            with members of the judiciary;

       (5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of
            the judiciary;

       (6) Show respect with my attire and demeanor;

       (7) Assist the judiciary in determining the applicable law; and

       (8) Seek to understand the judiciary’s obligations of informed and impartial
            decision-making.

As to my colleagues in the practice of law, I will aspire:

(a) To recognize and to develop our interdependence;

(b) To assist my colleagues to become better people in the practice of law and to accept their assistance offered to me.

(c) To defend my colleagues against unjust criticism; and

(d) To offer my colleagues appropriate assistance with your personal and professional needs.

As to our profession, I will aspire:

(a) To improve the practice of law. As a professional, I will:

       (1) Support high-quality continuing legal education;

       (2) Participate in organized activities of the bar and other legal organizations;

       (3) Assist when requested in the education of future lawyers; and

       (4) Promote understanding of professionalism and ethical standards among
            members of the profession.

(b) To protect the public from incompetent or other wrongful lawyering. As a professional, I will:

      (1) Support high standards in bar admissions; and

      (2) Assist in the enforcement of the legal and ethical standards imposed upon all
            lawyers.

(c) To support diversity in the profession, especially the practice of law by members of historically underrepresented groups.

(d) To promote the understanding of and an appreciation for our profession by the public. I will:

       (1) Use appropriate opportunities, publicly and privately, to comment upon the
             roles of lawyers in society and government, as well as in our system of justice;
             and

       (2) Conduct myself always with an awareness that my actions and demeanor
             reflect upon our profession.

(e) To devote my time and skills to activities that promote the common good.

As to the public and our systems of justice, I will aspire:

(a) To counsel clients about the moral and social consequences of their conduct.

(b) To consider the effect of my conduct on the image of our systems of justice including the social effect of advertising methods.

(c) To provide the pro bono representation that is necessary to make our system of justice available to all.

(d) To support organizations that provide pro bono representation to indigent clients.

(e) To improve our laws and legal system by, for example:

        (1) Serving as a public official;

        (2) Assisting in the education of the public concerning our laws and legal system;

        (3) Commenting publicly upon our laws; and

        (4) Using other appropriate methods of effecting positive change in our laws and legal system.

The Creed and Aspirational Ideals are published by the Mississippi Bar.

IF BUSINESS IS SLACK, YOU MIGHT TRY CHANNELING

November 19, 2010 § Leave a comment

Channeling is communication with spirits.  Some people claim to be able to communicate with the dead or others in the spirit realm, and share the communications with those here on the terrestrial plane.

That’s what an Arizona lawyer did.  She convinced at least one client that she could “channel” messages from his dead spouse in the deceased spouse’s estate.  She told the client that she was receiving communications from the deceased directing them to take this action and that, and she was so convincing that she continued to represent the client for three years. 

Things got a little more complicated after she persuaded her client that his deceased spouse wanted the attorney and client to have sex, and they did.  The client filed a bar complaint charging that the lawyer was exercising undue influence.

You can read what the Arizona courts did discipline-wise here

Now, I am not suggesting you carry channeling beyond the bounds of propriety, assuming that channeling is itself, after all, within the bounds of proriety.

I am merely mentioning another possible career enhancement, not too far removed from the common practice of Mississippi lawyers to try to predict what the chancellor will do by hitting the ouija board with their clients.  Uh, most of you still do that, right?

If you are going to get into the channeling business, please try to make it obvious to the court that your behavior is channeling and not imbibing. 

And another thing you need to keep in mind: there are risks involved in channeling.  There is always the danger of out-of-control séances:

FAMILY LAW IN THE FAST LANE

October 29, 2010 § Leave a comment

This article is copied from the Washington Post online edition.  After you read it, you may have an unsettling sense of unreality.  Lawyers charging $850 an hour for a divorce?  Billing for more than 7 hours a day, 365 days a year? Billing for as many as 71 hours in a day?  $624,000 in fees for a divorce trial?  I am not making this up.

High-priced lawyer sues former client, then agrees to pay him $102,000
By Tom Jackman
Washington Post Staff Writer
Saturday, September 25, 2010; 6:29 PM

Glenn C. Lewis is an acknowledged titan of the D.C. area divorce bar, a former president of the Virginia Bar Association who boasts that he is the most expensive lawyer in the region: $850 an hour. He has an impressive office in the District and an array of high-profile clients.

So it fascinated the Fairfax County courthouse when Lewis sued one of his former clients for an additional $500,000 in fees and interest, although he’d already been paid $378,000.

The fascinating part was that the client, a lawyer himself, fired back. He hired another former state bar president, Bernard J. DiMuro, who dug through Lewis’s billing records and hired two more divorce bar giants – including another former state bar president – as his experts. The experts said Lewis had done a poor job and didn’t deserve nearly $900,000 for his work.

In Fairfax Circuit Court on Friday, Lewis capitulated. He agreed to pay his former client more than $102,000, including $25,000 in sanctions imposed on Lewis’s lawyers for defying pretrial orders. Lewis even failed to show up for his own deposition.

Lewis, who for years hosted his own cable access television show, and who was given a lifetime achievement award from the Virginia State Bar’s family law section, remains unrepentant. His final bill for the divorce of Steve Firestone was $627,000, and he sought another $253,000 in interest for the case, which ended in 2004 without a trial less than a year from the time it was filed.

“He owed us more than that,” Lewis said in an interview last week. “We earned more than that. I feel as strongly today as I did the day we filed [suit], that Mr. Firestone owed every penny of it.”

Firestone said, “I thought that what I paid was egregiously high,” and he stopped paying shortly before his divorce was finalized. Then he received the lawsuit seeking another $500,000 five years later.

“I was shocked,” Firestone said. “If he won, we were going to be out on the street.”

Firestone hired DiMuro, who doesn’t do divorce law. But DiMuro obtained Lewis’s billing records and the records of the divorce, which he then handed over to Joseph Condo and Robert Shoun, two longtime family law practitioners.

Their conclusion: Not only were Lewis’s bills “flagrantly disproportionate to the value of the dispute,” DiMuro said, but Lewis’s settlement was a lousy deal. Firestone, through DiMuro, pursued Lewis for legal malpractice.

Firestone’s ex-wife had used Fairfax attorney David L. Duff for the divorce. Duff’s total bill: $73,000.

DiMuro noted that three lawyers from Lewis’s firm worked on Firestone’s case, and two lawyers often appeared at meetings or depositions that would normally be handled by one lawyer. In 2003, Lewis was only billing $575 an hour, while two young associates billed at rates closer to $250 an hour.

Lewis said Firestone was a difficult client, presenting numerous problems, and that comparing one side’s legal bills with the other’s is unfair. Firestone had tax problems, problems with his law practice, bookkeeping difficulties, suffered from depression and was intent on revenge against his wife, Lewis said.

But DiMuro said, “This was a garden-variety divorce with a modest estate for this area. No child custody issues. Their incomes were modest.” Besides their house in Fairfax County, the Firestones owned a small office condo and a few other assets. Firestone also had a $1.1 million inheritance from his parents, DiMuro said, which Lewis successfully kept separate from the marital estate.

Lewis said that’s a simplistic analysis. “This case presented so many more issues that were bigger than getting unmarried,” he said. “I had the high maintenance client.” He said Firestone signed a contract acknowledging that multiple lawyers might work on his case and that he had 30 days to challenge a bill, which he never did.

One of Firestone’s quirks was his heated denial that his wife had cancer, Lewis claimed. Lewis said he never really pursued the issue, and the case ended in July 2004. But several years later, in a casual conversation with Duff, he learned that Beverly Firestone had died of cancer not long after the divorce.

“My head exploded,” Lewis said. “I was sickened by that. I was horrified to think the case accelerated that. Nothing is more stressful than a divorce case. Stress kills.”

So, he sued Steve Firestone in October 2009.

Firestone said he never told Lewis his wife didn’t have cancer. “I told him I wondered if it was a ploy to increase my alimony exposure,” Firestone said.

In pretrial discovery, DiMuro obtained billing records for all of Lewis’s cases, not just the Firestone case. He found examples of days where Lewis billed for 39 hours; 31 hours; 40 hours; 71 hours.

Lewis said that was the result of “block billing,” in which he entered the time for many days all at once.

In a 16-month period in 2003 and 2004, DiMuro calculated in court records, Lewis billed his clients for 3,620 hours, or an average of 226 hours per month, or 7.4 hours per day, 365 days per year.

Lewis said he worked nights and weekends, in addition to his bar duties and television hosting.

As the suit progressed in Fairfax Circuit Court, Lewis’s lawyers angered Fairfax judges by failing to respond to basic requests and orders. The judges started slapping Lewis’s lawyers with financial sanctions. First $2,000. Then another $2,000. Then $5,000, $7,500 and finally a $10,515 hit after Lewis failed to appear for his deposition last month.

Lewis said his lawyer, Michael P. Freije, had released him from appearing, although he had been subpoenaed. Freije told Judge David S. Schell there had been a misunderstanding, but Schell was clearly upset and ordered Lewis to appear in DiMuro’s office the following week as well as pay the highly unusual fifth court-imposed sanction.

Lewis said he couldn’t be there, because of family obligations. Rather than defy the court, he said, he agreed to pay Firestone and settled the case.

ATTACK OF THE KILLER EARWIGS

September 1, 2010 § 1 Comment

Bedbugs

The latest fad in the anxiety/nightmare industry is bedbugs.  Seems like every media outlet has close-up photos of the little beasts the size of shetland ponies roaming mattresses across the country in cornucopious profusion awaiting fleshy morsels to chomp off of unwary humans. 

In Chancery Court our “bedbug” is the dreaded earwig.

Uniform Chancery Court Rule 3.10, entitled EARWIGGING THE CHANCELLOR PROHIBITED, provides in part: 

“No person shall undertake  to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith.  No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.  No person shall send any written communication to the Chancellor concerning a pending action in  the Court without delivering or mailing a copy of that communication to the opposing party …”   

The language about written communication and copy to the opposing side has given rise to a curious practice among some attorneys that can be illustrated in the following scenario:

Lawyer A sends a letter to the Chancery Judge describing the scurrilous actions of the opposing party, including pillage,  wantonness and rapine.  There in the lower left-hand corner of the letter is the notation “cc:  counsel opposite.” 

When the judge questions the propriety of the letter, Lawyer A responds innocently that he complied with the rule because he sent a copy to opposing counsel.  

With all due respect, if any is due, that practice is undoubtedly in violation of the rule and is, without question, earwigging.

Potential earwigs

The provision for copy of written communication to opposing counsel includes no exception to the preceding two sentences prohibiting communications about the merits of the case.  It simply means that, if communication by letter is proper, as where it is necessary to transmit a copy of an agreed order, then a copy of the proper communication must be sent to opposing counsel. 

By the time that opposing counsel has received a copy of the ex parte correspondence, the damage has already been done.  The bell cannot be unrung, as the adage says.  The judge has heard one side alone on the matter, and the judge’s impartiality and independence is in question from then on out.  If the judge rules for the side that sent the letter, was the judge unduly influenced?  If the judge rules against the side that sent the letter, was the judge trying to lean the other way to prove impartiality?  We can never know what might have been because the ex parte communication has called the judge’s impartiality into question.

In my court, if you have allegations to make on the merits, put them in the form of a pleading and set the matter for hearing, and I will make a judgment after hearing both sides.  Don’t poison the well that both parties have to drink from.

If you introduce the dreaded earwig into Chancery Court, prepare to be fumigated.

Genuine earwig

Genuine Ear Wig

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