ATTORNEY CLIENT RELATIONSHIP

Question 1

What is the test to determine if a fiduciary relationship exists between lawyer and client?

Answer 1

The test is subjective and hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.

Whether a client has paid the attorney for services is IRRELEVANT to the issue of whether an attorney-client relationship has been established.

Question 2

What is a prospective client

Answer 2

4-1.18 - a prospective client is a person who discussed with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter

Question 3

Is there confidentiality with a prospective client

Answer 3

4-1.18 - even when no relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation (unless permitted by 4-1.19).

Question 4

What duty does a lawyer owe to a prospective client

Answer 4

4-1.18 - A lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be used to the disadvantage of that person in the matter (unless otherwise allowed by rules).

If a lawyer is disqualified from representation under this rule, no lawyer in a firm with which the lawyer is associated may knowingly undertake or continue representation in such a matter (unless otherwise allowed by rules).

Question 5

What is the exception to 4-1.18 prohibiting a lawyer from taking a case in conflict with a prospective client

Answer 5

4-1.18(d): When the lawyer has received disqualifying information about a prospective client, lawyer may take the new case IF:

(1) Both the affected client and the prospective client have informed consent, confirmed in writing; or

(2) The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information that was reasonably necessary to determine whether to represent the prospective client; and

(i) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii) Written Notice is promptly given to the prospective client.

Question 6

Is a retainer agreement mandatory to an attorney-client relationship?

Answer 6

4-1.5 - when the lawyer has not regularly represented the client, the basis or rate of the fee and costs SHALL be communicated to the client preferably in writing, before or within a reasonable time after commencing the representation. A fee for legal services that is nonrefundable in any part SHALL BE CONFIRMED IN WRITING and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee. The test for reasonableness applies to all fees for legal services without regard to their characterization by the parties.”

Question 7

What must be communicated with a client if there is no written retainer

Answer 7

The basis or rate of the fee and costs SHALL be communicated to the client preferably in writing, before or within a reasonable time after commencing the representation.

Question 8

When must a retainer agreement be in writing

Answer 8

A fee for legal services that is nonrefundable in any part SHALL BE CONFIRMED IN WRITING and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee.

Question 9

How must nonrefundable fees be communicated

Answer 9

In writing - letter is sufficient and the client does NOT need to sign it

Question 10

When is an attorney fee clearly excessive

Answer 10

(1) After review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney; or

(2) The fee or cost is sought or secured by the attorney by means of intentional misrepresentation or fraud upon the client, a nonclient party, or any court, as to either entitlement to, or amount of, the fee.”

Question 11

Can family attorneys recover contingency fees?

Answer 11

Contingency fee agreements are PROHIBITED in a domestic relations matter, the payment or amount of which is contingent upon securing a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.

EXCEPTION - The attorney’s fee in a dissolution of marriage action may be made contingent upon the Court ordering the opposing spouse to pay the fee

BUT (ANOTHER EXCEPTION)
This provision does not preclude a contract for a contingent fee for legal representation in connection with recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate these same policy concerns.

Question 12

Are lawyers permitted to split fees with lawyers of other firms

Answer 12

RPC 4-1.5(g)
Permits the division of legal fees between lawyers of different firms ONLY where the total fee is reasonable and the division is in the proportion to the services performed by each lawyer; OR

By written agreement with the client in which each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client and the agreement fully discloses that a division of fees will be made and the basis upon which the division of fees will be made.

Question 13

What is unit billing

Answer 13

A practice where an attorney bills a predetermined number of minutes for a given task.

Question 14

What is the position in the 3rd and 4th regarding unit billing

Answer 14

This practice has been expressly disapproved by the 3d and 4th Districts. Furthermore, because unit billing fails to give regard for actual time spent on true legal work, it creates an “excessive fee” under RPC 4-1.5(a)

Question 15

Can lawyers accept gifts from clients

Answer 15

While it is ok to accept small, token gifts, such as holiday gifts from clients, a lawyer should not accept substantial gifts from a client, nor shall a lawyer solicit any substantial gift from a client unless the lawyer is related to, or maintains a “close family relationship” with the client.

Question 16

Can attorney charge interest on fees owed

Answer 16

An attorney may charge a client a lawful rate of interest on overdue (liquidated) fees or costs after providing notice so long as there is either
1) a written agreement with the client authorizing the attorney to charge interest or,
2) reasonable prior notice furnished to the client that interest is to be charged.

Question 17

Can a 3rd party pay client’s attorney fee?

Answer 17

RPC 4-1.8(f), a lawyer may accept payment of fees and costs from a third party so long as:

(1) The client gives informed consent;

(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3) Information relating to representation remains protected and confidential (i.e. payment does not entitle the third party to access the attorney-client confidential information)

Question 18

What authority does family court have to award attorney’s fees & costs

Answer 18

Attorney’s fees may be awarded in dissolution proceedings including enforcement and modification proceedings, separate maintenance, custody and support proceedings and appellate proceedings under Chapter 61. (61.16)

Question 19

What authority does family court have to award attorney’s fees & costs in paternity action

Answer 19

Chapter 742

Question 20

What other proceedings confer authority to court to award attorney’s fees and costs?

Answer 20

UIFSA proceedings under Chapter 88. In addition, attorney’s fees may be awarded pursuant to Section 57.105

Question 21

When can a court not award attorney’s fees in an enforcement action per 61.16

Answer 21

In those cases in which an action is brought for enforcement and the court finds that the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney’s fees, suit money, and costs to the noncompliant party.”

Question 22

Can lawyer seek recover of fees for enforcing alimony or child support of a different FL court?

Answer 22

Yes, 61.17 provides additional methods of enforcing alimony and child support (Florida Court enters an order for alimony or child support and another court in Florida is enforcing) and authorizes the court to grant reasonable attorney’s fees in connection with such proceedings

Question 23

When can attorney recover fees pursuant to 57.105?

Answer 23

A reasonable attorney’s fees SHALL be awarded to the prevailing party in a civil proceeding in which the court finds that a claim or defense when initially presented to the court or at any time before trial was not supported by the material facts necessary to establish the claim or defense or would not be supported by application of the then existing law to those material facts

Question 24

Does trial court have jurisdiction to award fees for an appeal

Answer 24

Attorney’s fees are available for prosecution or defense of an appeal—trial court maintains continuing jurisdiction. Fla. Stat. 61.16

Question 25

Who may the attorney fee award be made to

Answer 25

Directly to a party, or may be awarded directly to an attorney who may then enforce the order in the attorney’s own name.

Question 26

Can a party seek appeal of an award of entitlement to fees?

Answer 26

Entitlement alone is not subject to appeal—amount must also be determined

Question 27

Are written findings necessary for a fee award

Answer 27

Written findings are required except for temporary awards

Question 28

What gives court jurisdiction to award fees for
-Dissolution, separate maintenance, custody, support, enforcement, modification and appellate proceedings

-Enforcement;

-Paternity

-UIFSA (by responding tribunal

-Unmeritorious claims?

Answer 28

61.16

61.17

742.045 & 742.031

Chapter 88

57.105

Question 29

When can attorney recover fees that are not directly for family case under Chapter 61

Answer 29

-Motion to set aside settlement agreement/FJ
-Actions to join corporation in a DOM

Question 30

What are situations in which court has equitable authority to award attorney’s fees

Answer 30

*Annulment where Wife was unaware that Husband was married.

*Annulment even where financially the needy spouse is the wrongdoer

Question 31

What is the objective of attorney fee awards

Answer 31

To place the parties on relatively equal footing and make sure both parties “will have the similar ability to secure competent legal counsel.” Canakaris v. Canakaris (Fla. 1980)

Question 32

What are considerations by court in a request for fees

Answer 32

The inquiry is whether one spouse has a need and the other spouse has the ability to pay (same consideration for temporary fees) AND that the fees sought are reasonable

Question 33

How does court assess a need and ability for fees?

Answer 33

The Court must assess “the relative financial circumstances of the parties.”

Question 34

What are the Rosen Factors

Answer 34

1.Scope and history of the litigation
2. Duration of litigation
3. Merits of the respective positions
4. Whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall)
5. Existence of prior and pending claims

Question 35

What are the different views on “needs”

Answer 35

Some courts require showing of actual need while others focus more on relative need (disparity of resources between the parties).

• actual need - some districts look at whether a party has a need irrespective of the financial circumstances of the other party (i.e. attorney’s fees denied to a former wife based upon a lack of need where former wife’s net worth was $1.1 million and the former husband’s net worth was at least $13 million).

*relative need - other districts look at the disparity in financial resources of the parties and may require a party to be responsible for fees where that party’s financial resources are substantially superior to the other party).

Question 36

What must ability to pay be based on

Answer 36

Must be based upon the resources that are within a party’s individual control. Must consider evidence – financial affidavit or other documents, failure to do so requires reversal.

Court must also look at the payor’s other obligations such as child support and alimony before determining his or her ability to pay attorney’s fees. The court must consider the total impact of all the obligations imposed by the Final Judgment

Question 37

what is required to support a fee award

Answer 37

A specific findings of need/ability and court should set forth the source in which the fees are to be paid and specific findings as to the number of hours reasonably expended and an hourly rate

Question 38

Can court award a percentage of fees to the party seeking fees?

Answer 38

Once the court determines that a party is entitled to a fee award and the amount of a reasonable fee, the court should award the whole amount, not only a percentage, absent findings of fact setting forth the basis for the split. (court may find that a party is responsible for a portion of his/her fees based on need/ability

Question 39

What must court consider when determining a parties’ need and ability

Answer 39

Court will look to INCOME and ASSETS in possession of each party.

Question 40

In sum what evidence must be provided to court for a fee award

Answer 40

(1) Evidentiary hearing required (to determine entitlement/amount reasonable # of hours incurred and whether reasonableness of hourly rate);

(2) Testimony required (including testimony of counsel);

(3) Expert testimony NOT required; and

(4) Specific findings not required but there must be sufficient evidence on the record to support the award.

Question 41

When will appellate court interfere with a temporary fee award

Answer 41

Trial courts have broad discretion in rendering temporary awards which appellate courts are reluctant to interfere with except under the most compelling of circumstances.

Question 42

What proof is necessary for a fee claim

Answer 42

(1) Written billing records (preferred but not required—may introduce only summary—failure to produce records or summary may result in reduction of claim);

(2) Documentary evidence re: need and ability to pay (financial affidavits, etc.);

(3) Testimonial evidence—affidavits are not enough—counsel MUST testify re: hours expended and hourly rate (expert testimony is no longer required to support an award of attorney’s fees but still allowed, however, court is not bound by the expert testimony).

Question 43

What written findings are required for a fee award

Answer 43

(1) Need;
(2) (reasonable) Ability to pay;
(3) (reasonable) Hourly rate;
(4) Number of hours expended; and
(5) Appropriateness of any enhancement/reduction

Question 44

What must court consider in ordering timing of payment of fees

Answer 44

Must be paid within a reasonable time

Question 45

The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions sets forth those litigation costs that should be taxed, those that may be taxed and those that should not be taxed. The guidelines set forth the three categories, which are

Answer 45

Cost that SHOULD be taxed, cost which MAY be taxed and costs which shall NOT be taxed

HOWEVER, guidelines are advisory only. The trial court maintains full broad discretion in awarding costs.

Question 46

What costs SHOULD be taxed

Answer 46

a. deposition documents and exhibits (including electronic depositions and costs associated with electronic conferencing),
b. expert witnesses,
c. witnesses,
d. court reporting costs other than for depositions and
e. reasonable charges incurred for requiring special magistrates, guardian ad litem, and attorneys ad litem;

Question 47

what costs MAY be taxed

Answer 47

a. mediation fees and expenses
b. reasonable travel expenses witnesses ( and of expert witnesses traveling more than 100 miles – NOT to include experts travel time);
c. Electronic discovery expenses;
d. Cost of producing copies of electronic stored information to a reasonably useable format in response to discovery request

Question 48

What costs shall NOT be taxed

Answer 48

a. cost of long distance telephone calls with witnesses, both expert and non-expert (including conferences concerning scheduling of depositions or requesting witnesses to attend trial),
b. any expenses relating to consulting by non-testifying experts,
c. costs incurred in connection with any matter which was not reasonably calculated to lead to the discovery of admissible evidence,
d. travel time (experts and attorneys)
e. travel expense of attorneys.
f. Privilege review of documents, including electronically stored information.

Question 49

Who has the burden of proving costs

Answer 49

The burden of proof is on the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.

Question 50

Can travel time of counsel be included as a cost for a fee award

Answer 50

(1) Travel time/travel expenses for counsel should not be awarded unless showing that local counsel could not be obtained. Wright v. Wright (1st DCA 1991)

(2) Award of fees cannot encompass travel time by an attorney, unless there is proof that special circumstances existed permitting the necessity of the travel time. Hahamovitch (4th DCA 2014).

(3) Travel time and expenses of party may be recoverable. Foster v. Foster (3d DCA 1969)

(4) Must plead for suit monies in addition to fees and costs. Sochia v. Sochia (4th DCA 1991)

Question 51

When can interest be imposed on fee award

Answer 51

-Begins on the date of entitlement to the award of fees and/or costs.

Question 52

When court consider rejecting of settlement offer for fee award

Answer 52

There is case after case which stands for the proposition that the mere rejection of an offer of settlement which was considerably better than the result achieved at trial is not enough basis to award fees to the other side.

-Where there was a failure to accept a reasonable settlement proposal COUPLED WITH bad faith litigation, fees may be assessed against a party and counsel for failure to accept the reasonable proposal. Diaz v. Diaz, (Fla. 2002)

There must be an express finding of bad faith conduct that is supported by detailed findings of fact describing the bad faith conduct that resulted in unnecessary fees (a general finding of bad faith conduct will not suffice).

Question 53

Which case stands for the proposition that a party cannot limit or otherwise contract away entitlement and/or amount of temporary fee award in prenuptial or postnuptial agreement

Answer 53

Belcher v. Belcher (Fla. 1972

Question 54

Do courts have discretion with respect to a prevailing party fee provision

Answer 54

A contractual provision that the prevailing party pays attorney’s fees governs and the court is without discretion to decline to enforce the provision.

Question 55

What is the test to determine if a party is the prevailing party

Answer 55

Test for determining the prevailing party is to determine which party prevailed on significant issues tried before the court.

Question 56

HYPO:
Wife sought to void prenuptial agreement (which contained prevailing party provision). Trial court found Agreement was enforceable; however, denied both parties request for prevailing party fees stating that the Husband prevailed on validity and Wife prevailed on interpretation. Does this uphold on appeal?

Answer 56

Berg v. Young (4th DCA 2015)
SAID NO - trial court erred in denying Husband’s request for fees as clear, unambiguous terms of agreement did not provide for an aware of fees to prevailing party on interpretation of the agreement.

Question 57

MSA specifically provides each party is responsible for his/her attorney’s fees, agreement ratified by the court. Custody battle was happening at the time that the court ratified the MSA. Mother failed to request a modification of the attorney’s fees provision or ask court to reserve jurisdiction to rule on award of attorney’s fees at later date KNOWING that the custody battle was in full force. Can Dad hold the waiver provision of the MSA against Mom to prevent her from seek fees in custody battle? T

Answer 57

YES - waiver of fees in Marital Settlement Agreement are generally valid and enforceable. Here, the waiver in the MSA operated as a waiver of the fees in a later custody dispute

Question 58

Is a general waiver of fees in an MSA viewed as a waiver for enforcement or modification?

Answer 58

When attorney’s fees provision in MSA does not contain a specific waiver of attorney’s fees re: future enforcement or modification, then Florida courts have held that these fees (future enforcement/modification) are NOT waived. Note, this is different from the case cited above wherein the parent was aware of the modification at the time of the entry of the Final Judgment ratifying the fee waiver.

Question 59

Can court deny interim fees but authorize parties to liquidate assets to fund litigation?

Answer 59

Yes - Schmitz v. Schmitz (4th DCA 2005)

Question 60

Which rules authorize temporary fees for appeal?

Answer 60

Fla. R. App. P. 9.600(c) and Fla. Stat. 61.16 but it should be brought before trial court

Question 61

Which rule authorizes final fees in appeal

Answer 61

Fla. R. App. P. 9.400(b) provides that a motion seeking “final” fees for appeal must be filed with the appellate court within time for service of reply brief (reply brief is the brief filed after the answer brief).

Question 62

How are final appellate fees determined

Answer 62

-Appellate court then determines preliminary entitlement and remands to trial court to determine “normal” entitlement and amount based upon need v. ability to pay standard.

-If entitlement is established, appellate court will remand case to trial court for a hearing to determine the proper amount based on need and ability to pay.

Question 63

Which court determines need and ability for final appeal fees

Answer 63

To be determined by trial court. Appellate court’s finding of entitlement is “preliminary” and only determines whether the matter should be further heard by the trial court.

Question 64

What is the procedure to review a trial court’s fee order stemming from an appeal

Answer 64

By Motion must be filed before the Appellate court within 30 days of trial court ruling.

*Fee awards are not appealable if they only determine entitlement—need to also determine amount.

• court has the right to tax costs – Prevailing party entitled to costs (Motion must be filed within 45 days from rendition of the Order).

Question 65

Can party seek contempt for enforcement of fee award

Answer 65

Fees awarded per Chapter 61 are in the nature of support and consequently are enforceable by contempt. Robbie v. Robbie (4th DCA 1996)

Question 66

Can fees be discharged in bankruptcy?

Answer 66

-If fees are awarded in the nature of support, they are not dischargeable in bankruptcy.

-If fees are awarded in enforcement action (of support obligations or based on need v. ability to pay), then presumptively non-dischargeable in bankruptcy.

-If fees are in the nature of a sanction for contempt – then dischargeable

Question 67

What is an alternative to seek fees if you cannot recover fees under Rosen?

Answer 67

Inequitable conduct doctrine

Question 68

What is the inequitable conduct doctrine

Answer 68

Court may award fees as a sanction where one party has exhibited egregious conduct or acted in bad faith (specific findings must be present) by the Court to uphold such a sanction for this type of conduct.

Question 69

If a lawyer does a reduced hourly rate for a client, can he then go into a fee hearing and ask for his regular rate?

Answer 69

court can still award regular fee in action against opposing side.

Question 70

What factors does court consider to determine reasonable fees

Answer 70

4-1.5
(1) Customary fee for matter;
(2) Experience and reputation of lawyer;
(3) Likelihood that case will preclude other employment;
(4) Time, novelty and complexity of the issues;
(5) Results obtained (permitted in Rosen but cannot be sole factor).

Question 71

What period of time can fees be awarded

Answer 71

Only during the period of time when request for fees was made

Question 72

What will vexatious litigation do

Answer 72

It can be used to limit / reduce fees requested by that party

Question 73

When can Rosen factors come into play for a fee award

Answer 73

The Court may consider any factor necessary to do justice and equity when determining a fee award. A request for fees may be denied when the court finds that action to be frivolous, spurious, or brought primarily to harass to adverse party. Rosen v. Rosen (Fla. 1997)

Question 74

Can attorney’s fees be awarded punitively?

Answer 74

Attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous non-meritorious claims that contribute to unnecessary legal expenses, costs and delay in proceedings.” Crowley v. Crowley (4th DCA 1996)

Question 75

When can court assess fees against lawyer for bad faith litigation

Answer 75

Court must make express finding of bad faith conduct and provide the attorney with an opportunity to be heard.

*The amount of attorney’s fees awarded must directly relate to the specific bad faith conduct of the attorney.

Question 76

What is procedure to seek 57.105 fees

Answer 76

Party seeking 57.105 fees MUST send motion (warning) to other side requesting that they withdraw their claim, defense, etc. within 21 days. If not withdrawn within 21 days, motion may be filed and presented to court for adjudication

Question 77

Can a party waive right to homestead exemption in a retainer agreement?

Answer 77

NO - also note, Sass v. Sass (4th DCA 2008) which held that a trial court erred in permitting a final judgment entered on an attorney charging lien to be executed against the former marital home which was homestead property

Question 78

How can attorney enforce fees against client

Answer 78

• charging lien,
• breach of contract action, or
• action for unjust enrichment (quantum
  meruit).

Question 79

What is a charging lien

Answer 79

The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.” Sinclair, Health, Nussbaum & Zavertik, P.A. v. Baucom (Fla. 1983).

It is founded upon the equitable notion that an attorney ought to receive his fees and disbursements out of the judgment he has obtained.

*Property awarded as part of the division of assets in a dissolution action can be the basis of a lien. Conroy v. Conroy (2d DCA 1980)

Question 80

What must attorney prove to effectuate a charging lien

Answer 80

(1) Valid agreement for payment of fees;
(2) Agreement, express or implied, that payment may come from proceeds of litigation;
(3) Non-payment; and
(4) Timely notice of lien and notice of hearing and imposition of lien

Question 81

When is a lien timely perfected?

Answer 81

If if the Notice of Lien is filed BEFORE entry of the final judgment.

(*As long as notice of intent to claim a charging lien is given prior to final disposition, an attorney need not pursue his lien claim before final judgment.)

Question 82

What does a court have to find in order to enforce charging lien

Answer 82

Court must find that attorney’s efforts contributed to the “fruits” of the litigation.

Question 83

Can lien attach to property not attached to divorce

Answer 83

No

Question 84

Can attorney recover his fees for pursuing charging lien

Answer 84

Generally, an attorney cannot seek “fees for fees.” In this regard, an attorney cannot recover fees for enforcing and perfecting a charging lien.

Question 85

What is a retaining lien

Answer 85

A retaining lien is “an attorney’s possessory interest in a client’s papers and files that the attorney holds until his fee has been paid.”

Question 86

What are exceptions to when lawyer cannot retain client file

Answer 86

A file will not be released to a client without payment or the furnishing of adequate security with limited exceptions, such as:
(1) when the attorney’s misconduct caused the withdrawal;
(2) when the client has an urgent need to defend a criminal prosecution and lacks the means to pay the fee or post a bond;
(3) where the attorney has filed a counterclaim or independent action seeking to collect the fee.

Question 87

Is retaining lien a statutory principle

Answer 87

No - common law. It does not depend upon any agreement between the lawyer and the client. If there is a dispute as to the amount owed, the trial court may hold a hearing to determine the amount and the terms of an adequate security

Question 88

Can fees be included in an income deduction order

Answer 88

Yes when its collecting alimony and child support to

Question 89

When can fees in a Title IV D action be awarded

Answer 89

Attorney’s fees, suit money and costs shall be assessed only against the nonprevailing obligor (i.e. person ordered to pay alimony/child support) after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees

Question 90

Does the paternity statute specifically carve out that fees can be awarded for appeals?

Answer 90

§742.045 does not state it applies to appellate fees and §61.16 specifically does, the Second DCA has held that the prior case law allowing for appellate fees under §61.16 and §742.045 should still be applied to allow appellate fees under §742.045 regardless of the statutory amendment to §61.16 to include appellate fees based upon equal protection concerns (i.e. parents of legitimate children should not be treated differently then parents of illegitimate children when it concerns rules for awarding attorney’s fees)

Question 91

Under 61.13(4)(c) when a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court, can a court award fees

Answer 91

Fla. Stat. §61.13(4)(c) provides an independent basis to award fees that is outside of §61.16, which means the court does not need to consider the financial resources of the parties. Robinson-Wilson v. Wilson, 932 So. 2d 330 (Fla. 4th DCA 2006) (former wife’s malicious interference with former husband’s timesharing justified award of fees under §61.16(4)(c) without any consideration of the former husband’s financial resources)

Question 92

What is the purposes of fees under 12.380

Answer 92

It is not to establish a foundation for the assessment of attorney’s fees but to compel discovery, and to penalize those parties improperly failing to comply with the discovery rules

Question 93

What is still required when an attorney seeks fees under 12.380

Answer 93

Still needs to present competent substantial competent evidence at an evidentiary hearing so that the court may make express findings regarding the reasonable hourly rate and the number of hours reasonably expended on the discovery issue

Question 94

How does court have authority to award fees for inequitable conduct doctrine

Answer 94

While trial courts generally many not award fees absent an express statute, rule or contract providing for same, the Supreme Court of Florida has long recognized that trial courts have the inherent authority to assess attorney’s fees for the misconduct of a party during litigation

The inequitable conduct doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.

If the court awards attorney’s fees under the inequitable conduct doctrine, it “must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees

the amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney

Question 95

How does an attorney recover fees for inequitable conduct doctrine

Answer 95

Here, you DO need corroborating expert testimony regarding the reasonableness of the fees, which includes testimony on the reasonableness of the hourly rate and number of hours incurred in connection with the bad faith conduct.

The court may only award fees under the inequitable conduct doctrine after notice and an opportunity to be heard, including the opportunity to present witnesses and other evidence

Question 96

Can a court award fees for a contempt action

Answer 96

12.615 civil contempt sanctions under this rule shall be limited to those used to compel compliance with a court order or to compensate a movant for losses sustained as a result of a contemnor’s willful failure to comply with a court order.

So, fees can be awarded as a sancton

Question 97

What jurisdiction does court need for a fee award

Answer 97

It must have personal jurisdiction over the payor

Question 98

When can party seek prejudgment interest on fees

Answer 98

A party should include a request for interest to accrue from the date of entitlement to fees, as prejudgment interest begins to incur on date court finds a party is entitled to fees, even if amount is determined as a later date

Question 99

What is the split among districts concerning “need” for fees

Answer 99

The suggestion is that the Third DCA, and sometimes the Fourth District, compare the financial resources of the parties and the party in the inferior financial position is usually awarded fees, even if though that party may not have an actual need (i.e. the spouse has liquid assets which could be used to pay fees)

First DCA, Second DCA, Fifth DCA, and again sometimes the Fourth DCA, it is suggested the courts look at the equitable distribution of marital assets and liabilities and determine if the requesting party would suffer undue hardship by utilizing either marital assets or income for daily living expenses to pay fees, while the other party is in a superior financial position and would not.

Question 100

Can court award fees via qualified domestic relations order

Answer 100

Attorney’s fees may be awarded from a retirement fund, including a pension, and the court may enter a Qualified Domestic Relations Order (QDRO) to facilitate the payment of fees.

Ugarte v. Ugarte, 548 So. 2d 284 (Fla. 3d DCA 1989) (affirming trial court’s order requiring husband to liquidate his IRA and/or his pension to pay fees);

Kay v. Kay, 723 So. 2d 266 (Fla. 3d DCA 1999) (there is no reason to preclude court from entering a QDRO to facilitate fees being paid by the husband from his pension

Question 101

What is the lodestar methodology

Answer 101

In Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), the Supreme Court of Florida lists the following factors in determining a reasonable fee, which is known as the Lodestar Methodology

Question 102

Name the factors to determine reasonable fee under the lodestar methodology

Answer 102

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained (note - the results obtained factor has been found to be irrelevant in dissolution of marriage cases)

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent (note - this factor is irrelevant in dissolution of marriage cases)

Question 103

How does court determine the lodestar figure

Answer 103

Apply the lodestar factors, and determine the number of hours reasonably expended, multiplied by the reasonable hourly rate to produce the lodestar figure.