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Board Cert > Attorney’s Fees > Flashcards

Attorney’s Fees Flashcards

1
Q

Requirements for retainer agreement?

A

Must be in writing, describe fee

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2
Q

Factors to determine if fee charged by lawyer in retainer is reasonable

A

Complexity
Time
Experience of lawyer
Length of rep of CL

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3
Q

Can you take payment from 3rd party?

A

Yes, if:
CL consents
3rd party doesn’t control litigation
Must maintain CL confidentiatliy

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4
Q

What are 3 ways to enforce retainer?

A

Charging lien
Retaining lien
Quantum meruit

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5
Q

What is required to file charging lien?

A

Express/implied K
Express/implied understanding of payment
Avoidance/dispute of payment
Timely notice to CL

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6
Q

What can a charging lien attach to?

A

Any property before the court, provided services produced positive result

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7
Q

What can’t charging lien attach to?

A

Other property
Homestead
Child support

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8
Q

Do you need an expert for fee hearings?

A

Expert only for charging lien fees and 57.105 (?)

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9
Q

CL doesn’t pay. You move to enforce charging lien. You add attorney’s fees for enforcing the lien. What does court do and why?

A

Remove fees - those fees didn’t contribute to positive result for CL.

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10
Q

UCCJEA - are fees permitted?

A

Mandatory

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11
Q

Partition case. COurt orders H to pay 100% of fees. Error or valid?

A

Error, usually split fees.

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12
Q

UIFSA - do you need need/ability to award?

A

No.

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13
Q

What is the standard/basis for 57.105 fees?

A

Fees “shall be awarded to a prevailing party when a claim or defense was not supported by the material facts encessary to establish the claim or defense, or would not be supported by the application of law to those facts”

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14
Q

Can you get costs in 57.105 fees?

A

No

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15
Q

Court grants 57.105 fees. Orders H to pay all, attorney to pay none. Valid?

A

No, have to be split equally.

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16
Q

What’s the deal with the Levy case on 57.105?

A

Read K carefully.
If a prevailing party provision, 57.105 makes it apply to both parties.
If already both parties, then follow the precise wording.

(MSA person in violation pays. So, if H sues W for violation, but W not found in violation even though she won, W can’t get fees)

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17
Q

Can you get fees in DV?

A

No, except 57.105 and only if false statement to material issue.

18
Q

What’s the test for bad faith fees (Moakley)?

A

Express finding of bad faith

Award proportional to bad faith

19
Q

What is the point of fee award?

A

So that each party has similar ability to obtain legal counsel

20
Q

What is pneumonic for Rosen factors?

A

SHEDM

21
Q

What is SHPDM for and what is each?

A

All factors to be considered in fee award

Scope of litigation
Harassment
Existence of prior litigation
Duration of litigation
Merits of positions
22
Q

What is S in SHEDM?

A

Scope/history of litigation

23
Q

What is D in SHED M

A

Duration of litigation

24
Q

What is M in SHEDM

A

Merits of positions

25
Q

What is H in SHEDM

A

Harassment via litigation

26
Q

What is P in SHPD M

A

Existence of prior/pending litiagtion

27
Q

Can you get to Rosen factors if no need/ability?

A

No, must have need/ability first.

28
Q

W can pay some fees. Can she get award?

A

Yes, but mention circuit split - some say actual need, some say disparity in income is sufficeint (lower standard)

29
Q

Can you impute income for fees?

A

Yes

30
Q

How do you calculate lodestar?

A

hours x reasonable hourly rate

31
Q

Can MSA say no temporary fees?

A

No. Can’t waive

32
Q

MSA has prevailing party clause. H files motion. H wins but no fees. Proper?

A

No, if there’s a prevailing party clause, you must enforce it

33
Q

W files motion for contempt. Does not request prevailing party fees but MSA has them. Court gives them to her. Valid?

A

No, must plead entitlement specifically under prevailing party

34
Q

How do you get appellate fees and what is the standard? (Both temp and final)

A

TEMP: File in trial court, need/ability.
FINAL: file in appellate, must do before reply brief via separate motion

35
Q

H files motion for contempt. Court grants, finds entitlement to fees. DOesn’t set amount. H appeals. Valid?

A

No, can’t appeal entitlement only.

36
Q

W hires forensic accountant who testifies. W hires tax consultant who does not. Asks for fees on both. How does court rule?

A

CPA yes, non-testifying consultant no.

37
Q

Can you get fees for collection efforts?

A

No.

38
Q

FJDOM entered. W files motion for fees after. Court rules how?

A

If no reserveation of J for fees, doesn’t get.

39
Q

Can you get interest on fee award?

A

Yes.

40
Q

Can a charging lien attach to real property that is not homestead?

A

No. No property.

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