1. law, govt and politics

ATTORNEY’S FEES: HOW TO GET THEM, HOW TO AVOID THEM
AND HOW TO PROTECT YOURSELF
By Jeffrey A. Weissman
HOW TO GET THEM
1.
Overview:
Attorney’s fees are available in dissolution proceedings, separate maintenance
proceedings and custody, support, enforcement and modification proceedings brought
under Chapter 61, including Fla. R. Civ. P. 1.540 actions to vacate final judgments of
dissolution – see, Bane v. Bane, 775 So. 2d 938 (Fla. 2000)(Section 61.16 authorizes
an award of attorney’s fees for a rule 1.540(b) motion to set aside a property settlement
agreement that was the product of one party’s fraud).
Section 61.16(1), Florida Statutes provides, in relevant part: “The court may from time
to time, after considering the financial resources of both parties, order a party to pay a
reasonable amount for attorney’s fees, suit money, and the cost to the other party of
maintaining or defending any proceeding under this chapter, including enforcement and
modification proceedings and appeals.” A copy of Section 61.16 is attached hereto as
Appendix “A”
Section 61.17, Florida Statutes provides additional methods of enforcing alimony and
child support and authorizes the court to grant reasonable attorney’s fees in connection
with such proceedings (a copy of Section 61.17 is attached hereto as Appendix “B”).
Attorney’s fees are not available for domestic violence proceedings – even if they are
part of dissolution proceedings. They must be carved out.
Attorney’s fees are also not available in enforcement actions where the person seeking
fees is the wrongdoer – Section 61.16.
Attorney’s fees are available for prosecution or defense of an appeal – trial court
maintains continuing jurisdiction – Section 61.16.
There is no need for corroborating expert testimony.
Attorney’s fees may be awarded directly to a party, or may be awarded directly to an
attorney who may then enforce the order in the attorney’s own name.
Entitlement alone is not subject to appeal – amount must also be determined.
Contingency fees are unauthorized except for enforcement (i.e., child support
enforcement).
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Request for attorney’s fees should be made in the petition, counterpetition or answer.
Attorney’s fees are within the discretion of the Court.
Written findings are required except for temporary awards (see, Piluso v. Piluso, 622
So. 2d 117 (Fla. 4th DCA 1993) - no need for written findings for a temporary award).
2.
Jurisdiction is statutorily based:
Statutory Authority: (1) Section 61.16, Florida Statutes - dissolution, separate
maintenance, custody (including travel expenses for wrongful removal of child), support,
enforcement, and modification (2) Sections 742.045 and 742.031, Florida Statutes –
paternity - See Zanone v. Clause, 848 So. 2d 1268 (Fla. 5th DCA 2003) and Guerin v.
DiRoma, 819 So. 2d 968 (Fla. 4th DCA 2002)(3) Chapter 88, Florida Statutes – UIFSA
(by responding tribunal); and (4) Section 57.105, Florida Statutes.
Section 57.105, Florida Statutes –a reasonable attorney’s fee 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. (See Section 57.105
attached hereto as Appendix “C”)
Fees are available where related to and/or intertwined with Chapter 61 proceedings –
(1) Fla. R. Civ. P. 1.540(b) actions to set aside final judgment; (2) actions to join
corporation in dissolution proceedings. Note: But not for domestic violence matters that
are intertwined.
Entitlement based upon “Equitable Jurisdiction” – rare and limited in application – within
sound discretion of trial court. See, e.g., (1) annulment where W was unaware that H
was married – Gilvary v. Gilvary, 648 So. 2d 317 (3rd DCA 1995); (2) annulment even
where financially needy spouse is wrongdoer – Smithers v. Smithers, 804 So. 2d 489
(4th DCA 2001).
3.
Objective of Attorney Fee award:
To place the parties on relatively equal footing.
The purpose of Section 61.16, Florida Statutes, is to make certain that both parties to a
dissolution proceeding “will have similar ability to secure competent legal counsel.” “It is
not necessary that one spouse be completely unable to pay attorney’s fees in order for
the trial court to require the other spouse to pay these fees.” Canakaris v. Canakaris,
382 So. 2d 1197 (Fla. 1980).
In accordance with “the equitable considerations underlying our dissolution law” the trial
court is compelled to “mitigate the harm an impecunious spouse would suffer where the
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other spouse’s financial advantage accords him or her an unfair ability to obtain legal
assistance.” Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988).
4.
Considerations by the Court:
The inquiry is whether one spouse has a need and the other spouse has the ability to
pay. Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991). The inquiry is the same
whether the fees requested are temporary or final. Pedraja v. Garcia, 667 So. 2d 461,
463 (Fla. 4th DCA 1996).
The Court must assess “the relative financial circumstances of the parties.” Montante v.
Montante, 627 So. 2d 554 (Fla. 4th DCA 1993). See also, Balko v. Balko, 957 So. 2d 15
(Fla. 2nd DCA 2007)(award of 100% of wife’s attorney’s fees and costs reversed where
award was based “solely on the relative income of the parties, without considering any
other financial resources available to them.” Upon remand, the trial court is “to
reconsider its award of fees taking into consideration the overall relative financial
positions and resources of the parties and to make findings of fact that will permit review
of its decision.”)
Although the financial resources of the parties are the primary factor to be considered,
other relevant circumstances are to be considered (the “Rosen factors”). The trial court
has “wide leeway to work equity in chapter 61 proceedings” and section 61.16 is to be
“liberally - - not restrictively - - construed to allow consideration of any factor necessary
to provide justice and ensure equity between the parties.” Rosen v. Rosen, 696 So. 2d
697 (Fla. 1997).
The Rosen factors are as follows:
-Scope and history of the litigation
-Duration of litigation
-Merits of the respective positions
-Whether the litigation is brought or maintained primarily to harass (or whether a
defense is raised mainly to frustrate or stall)
-Existence of prior and pending claims
The Court must also determine that the fees sought are reasonable - Duncan v.
Duncan, 642 So. 2d 1167 (Fla. 4th DCA 1994).
5.
Need v. Ability to Pay:
Relative Need – when requesting spouse is in an inferior financial position, entitlement
to fees granted irrespective of “actual” need – this is not the commonly accepted
standard.
Actual Need – fees warranted if requesting spouse cannot secure adequate counsel
without depleting marital assets, alimony and/or income used for general living
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expenses – “undue hardship” v. ability to pay (i.e., party should not be required to
deplete equitable distribution/alimony where other party has much greater ability to
pay). Court views disparity of financial circumstances. This is the more commonly
accepted standard. Note: If after the Final Judgment, the parties are placed on equal
footing after consideration of equitable distribution and support, it is error to award
entitlement to fees under this standard. See, Smith v. Smith, 495 So. 2d 229 (Fla. 2nd
DCA 1986)(it is inequitable to make one party pay the fees of the other when after
equitable distribution, each party has substantially equal ability to pay such fees).
There are differences amongst the DCA’s with regard to need. Most require actual need
whereas some view simple disparity. (1) 1st uses “actual” need; (2) 2nd uses “actual”
need; (3) 3rd uses “relative” need; (4) 4th sometimes uses “relative” need and sometimes
uses “actual” need; and (5) 5th uses “actual” need.
See, Satter v. Satter, 709 So. 2d 617 (Fla. 4th DCA 1998)(attorneys fees denied to
former wife based upon lack of need where former wife’s net worth was $1.1 Million and
former husband’s net worth was at least $13 Million); Donoff v. Donoff, 940 So. 2d 1221
(Fla. 4th DCA 2006)(award of appellate attorney’s fees to wife denied due to “obvious
lack of need” where wife had a net worth of nearly $2 Million and former husband’s net
worth was above $3.2 Million); Humerickhouse v. Humerickhouse, 932 So. 2d 1142
(Fla. 2nd DCA 2006)(denial of former wife’s request for attorneys fees in post-judgment
proceedings reversed where former husband was in a vastly superior financial position
and better able to pay fees. Neither the former wife’s receipt of a tax refund nor action
taken by her counsel which the trial court erroneously found to be “needless” constitutes
a sufficient ground for a complete denial of fees); Kelly v. Kelly, 925 So. 2d 364 (Fla. 5th
DCA 2006)(trial court erred in failing to award former wife all or most of her attorney’s
fees and costs where husband’s net worth was $12, 654,731 and his net monthly
income was $86,032.83 and former wife received $1.8 Million from the sale of the
marital residence plus an additional $963,728.10, had to pay $25,000 in credit card debt
and child support of $868 per month and received no alimony); Schwartz v. Schwartz,
2007 Fla. App. LEXIS 13392 (Fla. 1st DCA 2007)(denial of former wife’s request for
attorney’s fees was reversed and remanded where the husband’s net worth was “well
over ten times” the net worth of the former wife. “Because Former Wife previously paid
the majority of this amount to her attorney and has the financial ability to pay the
remaining balance, the trial court found that she has no need to be awarded fees. This
analysis was improper and irrelevant; accordingly, the trial court abused its discretion in
denying Former Wife’s request for attorney’s fees.”); Von Baillou v. Von Baillou, 959 So.
2d 821 (Fla. 4th DCA 2007)(award of 100% of attorney’s fees, accountant’s fees and
costs incurred by former wife reversed where former wife, who received $2.5 million in
equitable distribution and had monthly income of $6,117, had no financial need for all of
her fees to be paid by the former husband. The former husband also received $2.5
million in equitable distribution and had an additional $3.7 million in non-marital assets.
He already paid $140,000 in temporary fees and was not able to pay entire $241,640
award from his current earned income. “Contrary to the trial court’s apparent belief,
nothing precluded the court from holding the wife responsible for a portion of her fees.
With $2.5 million in assets, the former wife is able to pay some portion of her litigation
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fees without suffering an inequitable diminution of her assets. If a person is required to
bear at least a portion of his or her attorney’s fees, that person is more likely to be a
responsible, conservative consumer of legal services.”).
Ability to Pay:
Must be based upon resources available to a party – within the party’s individual control
- Azzarelli v. Purello, 555 So. 2d 1276 (Fla. 2nd DCA 1989) (but may be able to consider
regular, historic, and continuous gift income per Ordini v. Ordini, 701 So. 2d 663 (Fla. 4th
DCA 1997)(gifts from husband’s parents considered in determining husband’s income
for child support purposes). See also, Martin v. Martin, 959 So. 2d 803 (Fla. 1st DCA
2007)(“Occasional gifts of temporary support given on an irregular basis may not be
imputed as income under section 61.16, Florida Statutes.”). In addition, the fact that a
party’s fees have already been paid in full is not an appropriate basis for denying a
reasonable award of fees. See, e.g., Bogos v. Bogos, 936 So. 2d 1184 (Fla. 2nd DCA
2006). Can view all income and assets (marital and non-marital) – Eiler v. Eiler, 695
So. 2d 870 (Fla. 4th DCA 1997). If income is imputed, must specifically identify the
source and amount – Wilkinson v. Wilkinson, 714 So. 2d 524 (Fla. 5th DCA 1998).
Court must consider evidence re: ability to pay – failure to do so warrants reversal.
Financial affidavits and/or other documentation must be admitted into evidence and
considered by the court. Whether assets or liquid or illiquid is irrelevant – the value of
all assets must be considered – Emmel v. Emmel, 671 So. 2d 282 (Fla. 5th DCA 1996).
Note: Court must view need and ability to pay at the time that the proceeding has
concluded – not at some future date (i.e., entitlement should be determined based upon
financial resources at the time of final judgment, not at future hearing on fees) –
Duchesneau v. Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997).
The 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 of the obligations imposed by the Final Judgment –
Pelton v. Pelton, 617 So. 2d 714 (Fla. 1st DCA 1992); Tresser v. Tresser, 737 So. 2d
1195 (Fla. 2nd DCA 1999). See also, Price v. Price, 951 So. 2d 55 (Fla. 5th DCA
2007)(attorney fee award reversed where given husband’s support obligations as well
as his overall financial condition at the time of the final judgment, husband, who already
had to borrow money to pay his own attorneys fees, would have to borrow additional
money in order to pay wife’s fees).
6.
Reasonableness of Fees:
The Court must hold an evidentiary hearing to determine whether the fees and costs
incurred for services rendered were reasonable and if not, what a reasonable fee would
be – Martin v. Martin, 561 So. 2d 1266 (Fla. 3rd DCA 1990).
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Once the Court determines entitlement 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. See, Cole v. Roberts, 661 So. 2d 370 (Fla. 4th DCA 1995);
Tendrich v. Tendrich, 544 So. 2d 229 (Fla. 3rd DCA 1999)(award of only $20,000 was
an abuse of discretion when $95,000 was sought by the Wife, supported by the wife’s
expert and not seriously challenged as to reasonableness – even though the General
Master found that the Husband had a temporary serious cash flow problem, the
Husband projected a positive cash flow of $700K to $1 Million by the end of the year).
But see, Von Baillou v. Von Baillou, 959 So. 2d 821 (Fla. 4th DCA 2007)(wife could be
responsible for a portion of her own fees).
7.
Temporary Fees and Costs:
Standard – need v. ability to pay. See, Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988)
and Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991).
Court will look to income and assets in possession of each party.
Evidence: (1) evidentiary hearing required; (2) testimony required (including testimony
of counsel); (3) expert testimony not required; and (4) specific findings not required as
long as there is sufficient evidence in support of the award on the record – see Piluso v.
Piluso, 622 So. 2d 117 (Fla. 4th DCA 1993)(but specific findings are required for final
determinations).
Case Notes - Rathman v. Rathman, 721 So. 2d 1218 (Fla. 5th DCA 1998)(wife had not
demonstrated need for temporary fees where her own financial affidavit showed a
substantial amount of cash on hand); Robbie v. Robbie, 591 So. 2d 1005 (Fla. 4th DCA
1991)(lawyer for impecunious spouse is not expected to become her banker); Safford v.
Safford, 656 So. 2d 485 (Fla. 2nd DCA 1994)(trial court must determine amount of
temporary fees and costs to be reasonable).
Trial courts have broad discretion in rendering temporary awards which appellate courts
are very reluctant to interfere with except under the most compelling of circumstances.
A trial court can be found to have abused its discretion only where no reasonable man
would take the view adopted by the trial court – Young v. Young, 898 So. 2d 1076 (Fla.
3rd DCA 2005). But see, Kasm v. Kasm, 933 So. 2d 48 (Fla. 2nd DCA 2006)(temporary
fee award of $10,000 reversed where trial court did not explain how it determined that
such amount was a reasonable fee and appellate court could not discern how trial court
reached that conclusion. “The Wife’s attorney presented an affidavit which set forth
amounts expended through the date of the affidavit as well as an estimate of additional
hours to be expended and expenses to be incurred, but the affidavit itself could be read
to support an award ranging from far less to far more than the amount actually awarded.
Indeed, it is not entirely clear which fees and expenses, expended or projected, were
appropriate in this case. The trial court awarded $10,000 without explanation.”); Ghay
v. Ghay, 954 So. 2d 1186 (Fla. 2nd DCA 2007)(award of temporary attorney’s fees
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reversed where award “is unaccompanied by any factual findings regarding reasonable
hourly rates and the amount of fees that are expected to be reasonably incurred”).
See also, Derrevere v. Derrevere, 924 So. 2d 987 (Fla. 4th DCA 2006)(husband entitled
to a credit for temporary attorneys fees paid by him where it was determined in a prior
appeal that the trial court erred in granting the wife any award of attorney’s fees.
“[U]nder certain facts, temporary attorney’s fees may ultimately be borne by the party
receiving the benefit from the fees.”).
See sample motion for temporary fees and costs attached hereto as Appendix “D”.
Tip: An attorney’s fee affidavit and proposed litigation budget should be prepared and
provided to opposing counsel before the temporary fee hearing (see sample attached to
here as Appendix “E”).
8.
Final Fee Awards:
Must be specifically pled in original action (either petition or motion).
Pursuant to Fla. R. Civ. P. 1.525 (reservation of jurisdiction in Final Judgment) a
separate motion for counsel fees had to be filed within 30 days after entry of Final
Judgment in order to obtain counsel fees. On March 3, 2005, the Florida Supreme
Court promulgated Florida Family Law Rule of Procedure 12.525 which eliminated that
requirement in family law cases. Florida Family Law Rule of Procedure 12.525 states
that: “Florida Rule of Civil Procedure 1.525 shall not apply in proceedings governed by
these rules.”
Several courts held that Fla. Fam. L. R.P. 12.525 did not apply retroactively or to
pending cases See, e.g., Nicoletti v. Nicoletti, 902 So. 2d 215 (Fla. 2nd DCA 2005);
Reddell v. Reddell, 900 So. 2d 670 (Fla. 5th DCA 2005). See also, Caldwell v. Caldwell,
909 So. 2d 976 (Fla. 2nd DCA 2005)(because judgment that triggered Wife’s right to
attorney’s fees was entered before the effective date of rule 12.525, the rule does not
apply and rule 1.525 governs). However, on June 21, 2007, the Florida Supreme Court
approved a Third DCA decision which was in direct conflict with the Second and Fifth
DCA’s on this issue and held that “rule 12.525 applied to all cases that were pending on
the date of its enactment” Montello v. Montello, 961 So. 2d 257 (Fla. 2007).
Evidentiary Hearing Required – Soterakis v. Soterakis, 2005 Fla. App. LEXIS 15482
(Fla. 5th DCA 2005): Need v. Ability to Pay; reasonable hourly rate times reasonable
number of hours expended; written findings required.
Proof: (1) written billing records (preferred but not required – may introduce only
summary – failure to produce records or summary may result in reduction of claim) see
Tucker v. Tucker, 513 So. 2d 733 (Fla. 2nd DCA 1987);(2) documentary evidence re:
need and ability to pay (financial affidavits, etc.); (3) testimonial evidence (affidavits not
enough; counsel must testify re: hours expended and hourly rate; expert testimony no
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longer required to support an award of attorney’s fees but still allowed, however, the
court is not bound by the expert testimony – see Dalia v. Alvarez, 605 So. 2d 1282 (Fla.
3rd DCA 1992).
Objections to Costs: Must be raised before any hearing (ie: accountant’s testimony not
required where opposing side failed to raise objection before hearing; thus side seeking
award was not property put on notice to bring accountant to hearing). See Catalano v.
Catalano, 802 So. 2d 1146 (Fla. 2nd DCA 2001).
Written Findings of Fact required: Court must make specific written findings re: (1)
need, (2) ability to pay, (3) reasonable hourly rate, (4) # of hours reasonably expended;
and (5) appropriateness of any enhancement/reduction (however fee multipliers not
appropriate for dissolution cases – Standard Guaranty Ins. v. Quanstrom, 555 So. 2d
828 (Fla. 1990). Note: must determine entitlement (need v. ability to pay) before hourly
rate and reasonable # of hours). The Court must make factual findings to support the
award or the denial of a party’s request for attorney’s fees – see Perrin v. Perrin, 795
So. 2d 1023 (Fla. 2nd DCA 2001).
Payment of Fees: Court must require the payor to satisfy an attorney fee award in a
reasonable manner. See, Urbieta v. Urbieta, 469 So. 2d 930 (Fla. 3rd DCA 1985)(award
which allowed husband to pay $1,000 upfront and pay out $4,800 at $50 per month was
“manifestly erroneous” where husband had assets of $391,000); Williams v. Williams,
697 So. 2d 1311 (Fla. 3rd DCA 1997)(award which allowed husband to make minimal
payments to wife’s counsel on a monthly basis reversed. “Such minimal installment
payments are unreasonable and defeat the purpose of the award.”); Wright v. Wright,
2007 Fla. App. LEXIS 12732 (Fla. 2nd DCA 2007)(where the trial court found that the
Husband had the ability to pay the Wife’s attorney’s fees, structure of award which
allowed him to delay payment until the sale of the marital residence which might not be
until the year 2019 was “manifestly unreasonable.” “Allowing such a structure would
discourage competent attorneys from representing clients in dissolution of marriage
cases, thereby defeating the purpose of the statute providing for attorney’s fees and
costs in dissolution cases.”).
Case Notes: Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th DCA 2005)(counsel fee award to
wife reversed even though husband has greater income where the former wife’s assets
substantially exceed the husband’s assets); Derrevere v. Derrevere, 899 So. 2d 1152
(Fla. 4th DCA 2005)(counsel fee award reversed where trial court equalized assets and
income of the parties at the time of the final judgment – “superior future income
prospects” is speculative and does not translate into an ability to pay); Scott v. Scott,
888 So. 2d 81 (Fla. 1st DCA 2004)(counsel fee award reversed where trial court
received no testimony regarding the parties’ incomes and made no factual findings
regarding the parties financial needs and abilities); Martin v. Martin, 959 So. 2d 803
(Fla. 1st DCA 2007)(trial court abused its discretion in denying attorney’s fees to former
husband where disparity in income was substantial. “Earning two and half-times more
than one’s former spouse constitutes a substantial income disparity.”); Fulmer v.
Fulmer, 2007 Fla. App. LEXIS 11463 (Fla. 1st DCA 2007)(denial of attorneys fees
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reversed and remanded where trial court failed to determine the parties’ need and ability
to pay).
Reservation of Jurisdiction by Trial Court: (1) If properly pled and requested prior to
final hearing, court should reserve jurisdiction for subsequent hearing even if no
evidence put on at final hearing; (2) may reserve as to entitlement and amount; (3) if
party dies before final judgment, claim for fees still survives; (4) if voluntary dismissal,
court may still consider prior request for fees (if dismissed prior to time for filing an
answer, still may move for fees within a reasonable time).
9.
Pre-Nuptial and Post-Nuptial Agreements:
Parties cannot limit or otherwise contract away entitlement and/or amount of temporary
fee award in a pre-nuptial or post-nuptial agreement. Belcher v. Belcher, 271 So. 2d 7
(Fla. 1972) (cannot contract away right to temporary fees in prenuptial agreement); and
Sasnett v. Sasnett, 683 So. 2d 177 (Fla. 2nd DCA 1996)(Wife not precluded from
seeking additional temporary fees despite clause in post-nuptial agreement). However,
a prevailing party provision concerning litigation over the validity of the agreement is
enforceable - Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005).
10.
Equitable Jurisdiction:
Rare and limited in application
Typically applied to annulment cases (even available to wrongdoer)
Within sound discretion of trial court
11.
Costs and Suit Monies:
Costs Defined – expenses incurred prosecuting or defending an action
Authorized per same statutes authorizing fee awards (i.e., 61.16, 742, etc.)
List of taxable costs – Statewide Uniform Guidelines: (1) filing fees; (2) deposition costs
– requires that deposition was used at trial/hearing, or that it was otherwise necessary
(except for out-of-state travel costs of counsel); (3) court reporter fees/transcripts
(except for appeal unless authorized by appellate court; (4) process servers; (5)
photographs for trial; (6) private investigators (reasonableness/appropriateness
assessed); (7) expert witness fees – must be basis in record but evidentiary hearing not
required (i.e., expert CPA fees awarded after observation of expert in trial – further
hearing not required) – charges of expert for preparing, awaiting, hearing, and testifying
can be awarded – expert travel costs can only be awarded if deemed necessary; (8)
expert attorney testifying re: reasonableness of fees; (9) out of town, non-expert witness
gets statutory mileage rate; (10) photocopies if made part of court file – otherwise within
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discretion of judge; and (11) those itemized per Fla. R. App. P. 9.400 (a) – proper
motion needs to be made.
Suit Monies Defined – For family law matters, suit monies include all costs and litigation
expenses not otherwise listed in the Statewide Uniform Guidelines for Taxation of Costs
(i.e., costs for deposition not used at hearing or trial). Authorized pursuant to Section
61.16 – must show need and ability to pay.
Suit Monies – Case Notes: (1) Travel time/travel expenses for counsel should not be
awarded unless showing that local counsel could not be obtained – Wright v. Wright,
577 So. 2d 1355 (Fla. 1st DCA 1991); (2) travel time and expenses of party may be
recoverable – Foster v. Foster, 220 So. 2d 447 (Fla. 3rd DCA 1969); (3) must plead for
suit monies in addition to fees and costs (i.e., testimony without objection considered
adequate notice to award suit monies (travel expenses and other expenses) despite not
being specifically pled – only requested fees and costs – however, if properly raised
objection, testimony should be precluded) – Sochia v. Sochia, 573 So. 2d 388 (Fla. 4th
DCA 1991).
12.
Interest on Fees and Costs:
Begins on date of entitlement, even if amount not yet determined - Quality Engineered
Installation v. Higley South Inc., 670 So. 2d 929 (Fla. 1996).
13.
Offers of Settlement:
Cannot assess fees based purely on refusal to accept offer of settlement – need and
ability still must be considered. See, Aue v. Aue, 685 So. 2d 1388 (Fla. 1st DCA
1997)(there is no authority for denying attorney’s fees in dissolution cases solely for
failing to accept an offer of settlement); Levy v. Levy, 900 So. 2d 737 (Fla. 2nd DCA
2005)(refusal to accept husband’s settlement offer provides no support for conclusion
that Wife’s litigation conduct was “spurious”); Gauthier v. Gauthier, 768 So. 2d 1119
(Fla. 2nd DCA 2000)(court improperly denied counsel fees to Wife by relying on the
“fact” that she rejected a settlement offer which was not supported by the record) and
generally Rosen v. Rosen (while court may consider other factors, need and ability to
pay remain primary consideration).
Fees may be assessed against a party and counsel for failure to accept a reasonable
settlement proposal and bad faith litigation, however, there must be an express finding
of bad faith conduct that is supported by detailed findings of fact describing the specific
bad faith conduct that resulted in unnecessary fees. A general finding of bad faith
conduct will not suffice – Diaz v. Diaz, 826 So. 2d 229 (Fla. 2002).
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14.
Appellate Fees:
Temporary Fees – Fla. R. App. P. 9.600(c) & Section 61.16 – Trial court has continuing
jurisdiction to award “temporary” fees pending appeal. Per Fla. R. App. P. 9.600(c),
application for temporary fees should be brought before trial court.
Final Fees – Fla. R. App. P. 9.400(b) – Motion seeking “final” fees for appeal must be
filed with appellate court per Fla. R. App. P. 9.400 (b) – must be filed within time for
service of reply brief (Note: Reply brief is the brief filed after the answer brief – initial
brief, answer brief, reply brief).
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 – Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991). Appellate
Court shall “primarily consider the relative financial resources of the parties, unless an
appellate party’s cause is deemed to be frivolous – Taylor v. Taylor, 734 So. 2d 473
(Fla. 4th DCA 1999).
Need and Ability to Pay – To be determined by the trial court. Appellate Court’s finding
of entitlement is “preliminary” (only determines whether matter should be further heard
by trial court). Trial court still needs to perform need v. ability to pay analysis. See
Tremblay v. Tremblay, 687 So. 2d 313 (Fla. 4th DCA 1997).
Review of Trial Court’s Fee Order – Motion must be filed before Appellate Court within
30 days of trial court ruling – Fla. R. App. P. 9.400(c). Note: Fee awards are not
appealable if they only determine entitlement – need to also determine amount. This
applies to all fee awards, not just those for an appeal.
Costs for Appeal – Fla. R. App. P. 9.400(a) – (i.e., filing fees, process, preparation of
record, bond premiums, etc.) – motion must be filed within 30 days of appellate
mandate.
15.
Prevailing Party Clauses:
A contractual provision that the prevailing party pays attorney’s fees governs – Davids
v. Davids, 718 So. 2d 1263 (Fla. 2nd DCA 1998). Court should disregard need v. ability
to pay analysis.
See also, Hutchinson v. Hutchinson, 687 So. 2d 912 (Fla. 4th DCA 1997)( fees awarded
to party who prevailed on “significant” issues).
16.
Waiver Clauses:
A waiver of temporary fees is unenforceable in prenuptial agreements – courts always
have jurisdiction to award temporary fees pending entry of final judgment.
11
A waiver of temporary fees/future fees pending final judgment is unenforceable in postnuptial agreements - courts always have jurisdiction to award temporary fees pending
entry of final judgment.
A waiver of final fees – post judgment – can be overridden by the Court in a subsequent
action if other party engaging in frivolous litigation.
17.
Installment Payments:
Permitted if ordered timeframe is reasonable – See, e.g., Urbieta v. Urbieta, 469 So. 2d
930 (Fla. 3rd DCA 1985)(8 years to discharge $4,800 is too long). If timeframe is not
specified, must be interpreted as being due within a reasonable period of time.
Must at least comprise of monthly interest amount.
When combined with other obligations, cannot exceed overall ability to pay.
18.
Enforcement of Fee Awards:
Contempt Available – Fees per Chapter 61 are in the nature of support and
consequently, are enforceable via contempt. This includes enforcement of a money
judgment for fees – Robbie v. Robbie, 683 So. 2d 1131 (Fla. 4th DCA 1996).
Enforcement by Attorney – If ordered to be paid directly to counsel, then award may be
enforced in the attorney’s own name. Note: attorney may not seek an initial award in
his own name.
19.
Invasion of assets:
A Court may deny interim attorney’s fees but authorize parties to liquidate assets to
fund the litigation Schmitz v. Schmitz, 891 So. 2d 1140 (Fla. 4th DCA 2005).
20.
Discharge in Bankruptcy:
If fees are awarded in the nature of support, they are not dischargeable in bankruptcy –
See, Scharmen v. Scharmen, 613 So. 2d 121 (Fla. 1st DCA 1993).
If fees are awarded in an enforcement action (of support obligations or based on need
v. ability to pay) then presumptively non-dischargeable in bankruptcy.
NOTE: There have recently been significant changes to the Bankruptcy code as it
relates to Family Law matters, the effect of which is to make it even more difficult to
discharge support obligations including attorney’s fees. The new law may affect the
information contained in this section of the outline. The advice of a bankruptcy attorney
should be sought in this regard.
12
HOW TO AVOID THEM
1.
Challenge the reasonableness of the fees requested:
Once need and ability to pay is established, the court must determine the
reasonableness of the fees sought including rate charged and the hours expended.
Attorney’s fees should be awarded only for those services found to be reasonably
necessary – Dralus v. Dralus, 627 So. 2d 505 (Fla. 2nd DCA 1993). The Court may
order a party to pay only a portion of the other party’s fees, however, the court must
explain its rationale in writing.
A Court may disregard the hourly rate set forth in a retainer contract or a reduced fee
arrangement and use the factors set forth in Florida Compensation Fund v. Rowe, 472
So. 2d 1145 (Fla. 1985) and Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) to determine a
reasonable fee. For example: (1) if a lawyer is charging a client $300.00/hr but it is
determined by the court to be unreasonable, the court will disregard the contract in
claim for fees against opposing side and will instead determine a reasonable hourly
rate; (2) if a lawyer is being generous per contract and charging a reduced fee, court
can still award regular fee in action against opposing side.
Court should consider Rowe plus Rule 4-1.5 of the Florida Rules of Professional
Conduct: (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 per Rosen but cannot be sole factor). Note:
these factors help establish the reasonable hourly rate and the reasonable # of hours –
“Lodestar.” However, cannot use a multiplier in dissolution cases. Factors must be
considered, and written findings required (except for temporary awards).
Court must make specific findings as to the hourly rate, number of hours reasonably
expended and appropriateness of the reduction or enhancement factors - Zucker v.
Zucker, 774 So. 2d 890 (Fla. 4th DCA 2001). See also, Hay v. Hay, 944 So. 2d 1043
(Fla. 4th DCA 2006)(attorney fee award reversed where “trial court failed to make
specific findings with regard to the number of hours reasonably spent on the litigation
and the reasonable hourly rate.”).
Unit billing or billing for a certain period of time regardless of the actual time spent is
improper as it results in excessive fees and is not justified – Browne v. Costales, 579
So. 2d 161 (Fla. 3rd DCA 1991).
Hand-holding should not be assessed against opposing side. If the amount of
communication between attorney and client is unreasonable, the opposing side should
not have to bear the burden of the fees – Guthrie v. Guthrie, 357 So. 2d 247 (Fla. 4th
DCA 1978).
Duplicative efforts based upon retention of successor attorneys should not be assessed
against opposing side (i.e., counsel withdraws and successor counsel must read file,
13
etc.) In addition, a party is not entitled to unnecessary fees due to multiple attorneys
duplicating efforts – Tomaino v. Tomaino, 629 So. 2d 874 (Fla. 4th DCA 1993).
Travel time for a foreign attorney should not be assessed against the opposing side.
Court may consider the complexity of the issues involved in the case in determining the
reasonableness of the fees. If the issues seem rather simple or the issues are limited
(i.e., a post-judgment modification case as opposed to a dissolution case), the Court
can find that the fees incurred were not justified – Woodward v. Berkery, 714 So. 2d
1027 (Fla. 4th DCA 1997)(interim fee award of $137,289 reversed in post-judgment
modification proceeding for trial court’s consideration of the equitable considerations set
forth in Rosen and the need to impose some “economic rationality” on a party seeking
to modify or set aside a settlement)– See also, Rahman v. Rahman, 643 So. 2d 1200
(Fla. 5th DCA 1994); West v. West, 710 So. 2d 194 (Fla. 4th DCA 1998)(parties have
modest resources and litigated issues were simple).
When written time records are not produced, the Court may reduce the number of hours
being claimed. See Florida Patient’s Compensation v. Rowe, 472 So. 2d 1145 (Fla.
1985). There must be evidentiary support or an explanation for the hourly rate used by
the trial court - Cone v. Cone, 656 So. 2d 270 (Fla 4th DCA 1995).
Fees can only be awarded during period of time when request for attorney’s fees was
made. See Longmeier v. Longmeier, 921 So. 2d 808 (Fla. 1st DCA 2006)(award of fees
to former wife limited to date of her request for attorney’s fees and could not include
fees incurred prior to the date of request).
Tip: If the opposing side’s time records are not provided to you, you can subpoena
them (see sample subpoena annexed hereto as Appendix “F”). Once the time records
are received, they should be reviewed for unreasonable entries and cross-examination
of the requesting attorney should be prepared.
2.
Vexatious Litigation:
A party’s behavior may be used to limit/reduce the fees requested.
Pursuant to Section 61.16, Florida Statutes the court may not award fees, suit money or
costs to a noncompliant party. The Court may consider violations of court orders as the
basis for limiting or denying a fee award regardless of need and ability to pay. Flannery
v. Crowe, 720 So. 2d 308 (Fla. 4th DCA 1998); Rosa v. Rosa, 723 So. 2d 312 (Fla. 4th
DCA 1998).
According to Rosen, supra, 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 the action is frivolous, spurious or brought primarily to harass the
adverse party. Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)
14
A party’s financial circumstances should not shield them from paying their own fees and
possibly the other party’s fees when having engaged in frivolous litigation. See Mettler
v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990); Sutter v. Sutter, 578 So. 2d 788 (Fla. 4th
DCA 1991); Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3rd DCA 1992).
Attorney’s fees may be awarded as a punitive measure when a spouse in a domestic
relations case institutes frivolous non-meritorious claims that contribute to unnecessary
legal expenses, costs and a delay of the proceedings – Crowley v. Crowley, 678 So. 2d
435 (Fla. 4th DCA 1996); Barna v. Barna, 850 So. 2d 603 (Fla. 4th DCA 2003). See
also, Young v. Young, 898 So. 2d 1076 (Fla. 3rd DCA 2005)(husband threatened
prolonged litigation and his superior position as an attorney).
Fees may be assessed against counsel for litigating in bad faith. See Patsy v. Patsy,
670 So. 2d 1204 (Fla. 4th DCA 1996), Smallwood v. Perez, 735 So. 2d 495 (Fla. 3rd
DCA 1998); Kuttas v. Kuttas, 879 So. 2d 3 (Fla. 2nd DCA 2004). Court must make an
express finding of bad faith conduct and provide the attorney with an opportunity to be
heard – Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002). The amount of attorney’s
fees awarded must directly relate to the specific bad faith conduct of the attorney – Finol
v. Finol, 912 So. 2d 627 (Fla. 4th DCA 2005).
3.
Section 57.105:
(1) Upon court’s initiative or that of a party; (2) fees shall be assessed in equal amounts
against party and counsel if either knew or should have known that claim was not
supported by material facts or claim would not be supported by application of law to
material facts (however, counsel not liable if acted in good faith and relied upon client
re: existence of material facts; and fees, not to be assessed if challenge to existing law
is brought in good faith); (3) stalling/harassing litigation tactics proven by a
preponderance of the evidence – fees shall be assessed; (4) 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.
See, e.g., Ratigan v. Stone, 947 So. 2d 607 (Fla. 3rd DCA 2007)(attorney’s fees
awarded as a sanction pursuant to section 57.105, Florida Statutes where “former
husband was not forthright with his financial affairs and failed to comply with discovery
requests” and “engaged in wrong-doing throughout the trial”).
HOW TO PROTECT YOURSELF
1.
Fee Agreement with Client
A written retainer agreement is strongly recommended in every case. It should set forth
hourly rates, rights to charging and retaining liens and other rights and entitlements.
Court should uphold contractual hourly rate. (See sample retainer agreement attached
hereto as Appendix “G “).
15
Tips: (1) include a clause requiring client to object in writing within 10 days to any billing
statement, otherwise waived – Franklin & Marbin, P.A. v. Mascola, 711 So. 2d 46 (Fla.
4th DCA 1998); (2) bonus provisions will be void and unenforceable – voids contract and
revert to quantum meruit - King v. Young, Beckman, Berman & Karpf, 709 So. 2d 572
(3rd DCA 1998) (however, non-refundable retainers are permissible); (3) cannot have a
contingency contract in family law matter – Mason v. Reiter, 564 So. 2d 142 (Fla. 3rd
DCA 1990) - except in enforcement of child support arrearages.
2.
Enforcement by Attorney against Client:
Attorney’s fees may be enforced through a charging lien, breach of contract action, or
an action for unjust enrichment (quantum meruit).
Charging Lien - an equitable right to have costs and fees due to an attorney for
services rendered secured by the judgment or recovery - Sinclair, Louis, Siegel, Heath,
Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383 (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 - Conroy v. Conroy, 392 So. 2d 934 (Fla. 2nd DCA
1980). Property awarded as part of the division of assets in a dissolution action can be
the basis of a lien – Conroy, supra.
Must show – (1) valid agreement for payment of fees, (2) agreement, express or
implied, that payment may come from proceeds of litigation, (3) non payment, (4) timely
notice of lien and notice of hearing on imposition of lien. Note: a lien is timely perfected
if the Notice of Lien is filed before entry of the final judgment. See, e.g., Litman v. Fine,
Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88 (Fla. 3rd DCA 1987).
But also see, Newton v. Kiefer, 547 So. 2d 727 (Fla. 2nd DCA 1989)(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)
Liens only attach to the client’s proceeds of the litigation – does not attach to alimony or
child support – and court must find that attorney’s efforts contributed to the “fruits” of the
litigation. See, Leone v. Leone, 619 So. 2d 323 (Fla. 3rd DCA 1993)(charging lien should
not be enforced against alimony award if it would deprive recipient spouse of daily
sustenance or the minimal necessities of life). Cannot attach to property not involved in
the lawsuit and not before the Court – Cole v. Kehoe, 710 So. 2d 705 (Fla. 4th DCA
1998); Rudd. v. Rudd, 960 So. 2d 885 (Fla. 4th DCA 2007). However, can apply to
settlement proceeds, even where settlement was reached without assistance of counsel
– Boose, Casey, Ciklin, et. Al. v. Runco, 741 So. 2d 1219 (Fla. 4th DCA 1998).
Generally, cannot seek “fees for fees” – Wight v. Wight, 880 So. 2d 692 (Fla. 2nd DCA
2004). See also, Rudd v. Rudd, 960 So. 2d 885 (Fla. 4th DCA 2007)(cannot recover
fees for enforcing and perfecting charging lien).
16
See sample notice to establish charging lien attached hereto as Appendix “H“ and
sample motion to determine amount of charging lien attached hereto as Appendix “I”
Retaining Lien - an attorney’s possessory interest in a client’s papers and files that the
attorney holds until his fee has been paid. Where there is a valid retaining lien, 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 - Foreman v. Behr, 866 So. 2d 705 (Fla.
2nd DCA 2003); Fingar v. Braun & May Realty, Inc., 807 So. 2d 202 (Fla. 4th DCA 2002);
Wintter v. Fabber, 618 So. 2d 375 (Fla.4th DCA 1993).
A retaining lien derives from the 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 – Andrew Hall & Associates v. Ghanem, 679 So. 2d 60 (Fla. 4th DCA 1996).
3.
Follow the Rules:
Adhere to the Rules of Professional Conduct – see Fla. Bar. Reg. R. 4-1.5 (a copy of
which is attached hereto as Appendix “J”) and the relevant case law.
Don’t pursue frivolous claims even if your client insists and avoid subjecting yourself to
Section 57.105 sanctions.
Practice zealous representation within the bounds of advocacy.
17
APPENDIX “A”
§ 61.16. Attorney's fees, suit money, and costs
(1) The court may from time to time, after considering the financial resources of both
parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the
cost to the other party of maintaining or defending any proceeding under this chapter,
including enforcement and modification proceedings and appeals. 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. An application for attorney's fees, suit
money, or costs, whether temporary or otherwise, shall not require corroborating expert
testimony in order to support an award under this chapter. The trial court shall have
continuing jurisdiction to make temporary attorney's fees and costs awards reasonably
necessary to prosecute or defend an appeal on the same basis and criteria as though the
matter were pending before it at the trial level. In all cases, the court may order that the
amount be paid directly to the attorney, who may enforce the order in that attorney's name.
In determining whether to make attorney's fees and costs awards at the appellate level, the
court shall primarily consider the relative financial resources of the parties, unless an
appellate party's cause is deemed to be frivolous. In Title IV-D cases, attorney's fees, suit
money, and costs, including filing fees, recording fees, mediation costs, service of process
fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only
against the nonprevailing obligor after the court makes a determination of the nonprevailing
obligor's ability to pay such costs and fees. The Department of Revenue shall not be
considered a party for purposes of this section; however, fees may be assessed against the
department pursuant to s. 57.105(1).
(2) In an action brought pursuant to Rule 3.840, Florida Rules of Criminal Procedure,
whether denominated direct or indirect criminal contempt, the court shall have authority to:
(a) Appoint an attorney to prosecute said contempt.
(b) Assess attorney's fees and costs against the contemptor after the court makes a
determination of the contemptor's ability to pay such costs and fees.
(c) Order that the amount be paid directly to the attorney, who may enforce the order in
his or her name.
18
APPENDIX “B”
§ 61.17. Alimony and child support; additional method for enforcing orders and judgments;
costs, expenses
(1) An order or judgment for the payment of alimony or child support or either entered by
any court of this state may be enforced by another chancery court in this state in the
following manner:
(a) The person to whom such alimony or child support is payable or for whose benefit it is
payable may procure a certified copy of the order or judgment and file it with a complaint
for enforcement in the circuit court for the county in which the person resides or in the
county where the person charged with the payment of the alimony or child support resides
or is found.
(b) If the pleadings seek a change in the amount of the alimony or child support money,
the court has jurisdiction to adjudicate the application and change the order or judgment. In
such event the clerk of the circuit court in which the order is entered changing the original
order or judgment shall transmit a certified copy thereof to the court of original jurisdiction,
and the new order shall be recorded and filed in the original action and become a part
thereof. If the pleadings ask for a modification of the order or judgment, the court may
determine that the action should be tried by the court entering the original order or
judgment and shall then transfer the action to that court for determination as a part of the
original action.
(c) Enforcement of a case certified under Title IV-D of the Social Security Act under this
section shall grant to the registering court jurisdiction to address only those issues allowed
and reimbursable under Title IV-D of the Social Security Act.
(2) The court in which such an action is brought has jurisdiction to award costs and
expenses as are equitable, including the cost of certifying and recording the judgment
entered in the action in the court of original jurisdiction and reasonable attorney's fees.
(3) The entry of a judgment for arrearages for child support, alimony, or attorney's fees and
costs does not preclude a subsequent contempt proceeding or certification of a IV-D case
for intercept, by the United States Internal Revenue Service, for failure of an obligor to pay
the child support, alimony, attorney's fees, or costs for which the judgment was entered.
19
APPENDIX “C”
§ 57.105. Attorney's fee; sanctions for raising unsupported claims or defenses; service of
motions; damages for delay of litigation
(1) Upon the court's initiative or motion of any party, the court shall award a reasonable
attorney's fee to be paid to the prevailing party in equal amounts by the losing party and
the losing party's attorney on any claim or defense at any time during a civil proceeding or
action in which the court finds that the losing party or the losing party's attorney knew or
should have known that a claim or defense when initially presented to the court or at any
time before trial:
or
(a) Was not supported by the material facts necessary to establish the claim or defense;
(b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party's attorney is not personally responsible if he or she has acted in
good faith, based on the representations of his or her client as to the existence of those
material facts. If the court awards attorney's fees to a claimant pursuant to this subsection,
the court shall also award prejudgment interest.
(2) Paragraph (1)(b) does not apply if the court determines that the claim or defense was
initially presented to the court as a good faith argument for the extension, modification, or
reversal of existing law or the establishment of new law, as it applied to the material facts,
with a reasonable expectation of success.
(3) At any time in any civil proceeding or action in which the moving party proves by a
preponderance of the evidence that any action taken by the opposing party, including, but
not limited to, the filing of any pleading or part thereof, the assertion of or response to any
discovery demand, the assertion of any claim or defense, or the response to any request by
any other party, was taken primarily for the purpose of unreasonable delay, the court shall
award damages to the moving party for its reasonable expenses incurred in obtaining the
order, which may include attorney's fees, and other loss resulting from the improper delay.
(4) A motion by a party seeking sanctions under this section must be served but may not be
filed with or presented to the court unless, within 21 days after service of the motion, the
challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected.
(5) In administrative proceedings under chapter 120, an administrative law judge shall
award a reasonable attorney's fee and damages to be paid to the prevailing party in equal
amounts by the losing party and a losing party's attorney or qualified representative in the
same manner and upon the same basis as provided in subsections (1)-(4). Such award shall
be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an
agency as defined in s. 120.52(1), the award to the prevailing party shall be against and
paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the
administrative law judge of jurisdiction to make the award described in this subsection.
(6) The provisions of this section are supplemental to other sanctions or remedies available
20
under law or under court rules.
(7) If a contract contains a provision allowing attorney's fees to a party when he or she is
required to take any action to enforce the contract, the court may also allow reasonable
attorney's fees to the other party when that party prevails in any action, whether as plaintiff
or defendant, with respect to the contract. This subsection applies to any contract entered
into on or after October 1, 1988.
21
APPENDIX “D”
IN THE CIRCUIT COURT OF THE 17th
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. :
IN RE: THE MARRIAGE OF
,
Petitioner/Husband,
and
,
Respondent/Wife.
______________________________/
WIFE’S MOTION FOR TEMPORARY ATTORNEY’S FEES AND COSTS
The Respondent/Wife, NAME (hereinafter “Wife”), by and through her undersigned
counsel, hereby moves the Court for the entry of an Order granting her temporary attorney’s fees
and costs, and as grounds therefor, states as follows:
1.
The parties were married on DATE.
There is one minor child of the
marriage, to wit: NAME, born DATE. The minor child resides with the Wife and the Husband at
the marital residence located at ADDRESS.
2.
The Wife has been a stay at home mother and the primary caregiver and
psychological parent for the minor child throughout the marriage. At the Husband’s insistence,
the Wife has not worked throughout the marriage. As a result, she has no financial resources of
her own. The Husband pays all of the household and marital expenses and controls the purse
strings.
22
3.
Throughout the marriage, the Husband has dominated and controlled all aspects
of the parties’ marriage including the family finances. The Wife was told virtually nothing about
the financial circumstances of the parties. When the Husband filed for divorce, he hired an
attorney for himself but refused to provide the Wife with funds so that she could do the same.
Apparently, the Husband is determined to keep the parties on unequal footing as they were
throughout the marriage.
4.
The Wife’s legal fees have already exceeded her initial retainer. Due to
the Wife’s limited knowledge of the parties’ finances, the Wife’s attorneys have had to rely upon
the Husband to produce financial documentation and attempt to analyze that documentation in
order to gain perspective as to the financial aspects of the case. This has been complicated by
the fact that the Husband’s production of documents is still not complete. The Wife recently
retained an accountant to assist in this process and the Husband agreed to pay the initial retainer
of $2,500. However, it is likely that the accounting fees will exceed such retainer and once
again, the Wife will be at the Husband’s mercy. The Wife will be unable to defend herself
without an award of legal fees from the Husband.
5.
The Wife should not be penalized in the litigation simply because she is
the financially disadvantaged spouse. The playing field must be leveled by the Court. The
Husband has all of the resources, the Wife has none. Accordingly, it is respectfully requested
that the Wife be granted an award of temporary attorney’s fees and costs sufficient to defend this
action through trial.
WHEREFORE, the Wife respectfully requests this Court to enter an Order granting her
the following relief pending Final Hearing:
A.
Award the Wife temporary attorney’s fees and costs; and
23
B.
Award the Wife such other and further relief as the Court deems just and proper
under the circumstances.
24
APPENDIX “E”
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.:
IN RE: THE MARRIAGE OF
,
Petitioner/Wife,
and
,
Respondent/Husband.
_____________________________________/
AFFIDAVIT OF WIFE'S COUNSEL IN SUPPORT OF
WIFE’S MOTION FOR TEMPORARY RELIEF
STATE OF FLORIDA
:
:SS.
COUNTY OF BROWARD :
BEFORE ME, a person duly authorized to administer oaths in the State of
Florida, personally appeared ATTORNEY, who after being first duly sworn, affirms and
states as follows:
1.
I am over 18 years of age and have personal knowledge of all facts and
circumstances set forth herein as counsel of record for the Petitioner/Wife, NAME
(hereinafter “Wife”), in these proceedings.
2.
The Wife retained the law firm of NAME OF LAW FIRM to handle her case
on or about April 15, 2004.
A copy of the written Authority to Represent -
25
Contract of Employment is attached hereto as Exhibit "A" and incorporated by reference
herein.
3.
This case involves complex issues including, but not limited to, the
valuation of the Husband’s medical practice, the composition of the marital estate and
the parties’ respective nonmarital assets, the Husband’s income and the Wife's claim for
permanent alimony.
4.
Since being retained in this case, LAW FIRM, primarily through the
undersigned, has performed valuable professional services on behalf of the Wife. The
following are the number of hours expended by the respective partners, associates and
legal assistants working on the subject file and the total value of time expended by LAW
FIRM and billed to the Wife from inception through March 31, 2005:
A.
Partners:
PARTNER # 1–23.25 hours at $325.00 per hour
PARTNER # 2–1.70 hours at $275.00 per hour
B.
Associates and Legal Assistants:
ASSOCIATE # 1–5.60 hours at $175.00 per hour
ASSOCIATE # 2-2.55 hours at $165.00 per hour
LEGAL ASSISTANT -41.30 hours at $100.00 per hour
Total fees billed:
5.
$ 7,556.25
$
467.50
$
$
$
1,443.00
420.75
4,130.00
$ 13,554.50
The Wife has incurred the following costs from April 15, 2004 through
March 31, 2005:
A.
B.
C.
D.
E.
Photocopies
Facsimiles
Parking
Federal Express
Hand Delivery
$
$
$
$
$
26
740.50
32.00
7.00
14.55
14.00
D.
E.
Service Fees
Filing Fees
Total costs billed:
$
$
$
64.00
267.50
1,139.55
6.
In sum, the total attorneys’ fees and costs incurred by the Wife in
maintaining and defending this action from April 15, 2004 through March 31, 2005 is
$14,694.05. Copies of the LAW FIRM’s redacted invoices reflecting the above time and
costs are attached hereto as Composite Exhibit “B.”
7.
Of the sum reflected above, the Husband voluntarily paid $8,500.00 to
Wife’s counsel pursuant to an agreement among counsel. As reflected in the attached
invoices, there remain outstanding fees and costs totaling $6,194.05 as of March 31,
2005. Unbilled work-in-progress for the month of April totals an additional $1,080.00.
8.
Given the complexity of the parties' financial circumstances, the
composition of the marital estate and the unique nature of the Husband’s income, the
Wife has been required to retain an expert accountant. The Wife has retained the
accounting firm of ACCOUNTING FIRM to undertake the requisite forensic accounting
in this matter. The Wife has incurred fees and expenses in the amount of $9,180.50
through March 31, 2005 for forensic accountant services. Of that sum, $4,180.50 is
unpaid and outstanding.
A complete set of ACCOUNTING FIRM’S invoices are
attached hereto as Composite Exhibit “C.”
9.
Additional time and cost charges not reflected herein have been expended
since March 31, 2005 and will be expended in preparation for and attendance at the
trial.
27
10.
The undersigned provides below a schedule of minimum estimated
prospective services and minimum estimated prospective costs associated with Wife's
further representation in this cause through trial:
A.
Obtaining updated discovery from Husband and
analysis of same……….. …………….…………………..
5.0 Hours
B.
Preparation for and attendance at depositions
of parties and parties’ respective expert witnesses
(including forensic accountants) ……………………….. 16.0 Hours
C.
Preparation for/attendance at the hearing on Wife's
Motion for Temporary Relief
…….. ………………….
4.0 Hours
Preparation for and attendance at miscellaneous future
hearings (including non-evidentiary hearings)………….
2.0 Hours
Preparation of Pre-Trial Catalog and/or Joint Pre-Trial
Stipulation…………………………………………………..
2.0 Hours
D.
E.
F.
Legal research (miscellaneous) and Trial Memorandum
for Final Hearing (at associate's hourly rate)………….
10.0 Hours
Telephone and office conferences with client and
opposing counsel……………………………………..…
5.0 Hours
H.
Miscellaneous correspondence……………………………….
2.0 Hours
I.
Final Hearing preparation
1.
Attorney Time
……………………………… 20.0 Hours
2.
Legal Assistant Time…………………………….. 10.0 Hours
J.
Attendance at Final Hearing (2 days in Court)………………..
G.
16.0 Hours
Total estimated services to be performed through Final Hearing:
Partner’s time - 72 hours at $325.00 per hour …..…………….$ 23,400.00
Associate’s time - 10 hours at $200.00 per hour………………$ 2,000.00
Legal Assistant’s time - 10 hours at $100.00 per hour……….$ 1,000.00
TOTAL PROJECTED FEES:……………………………………..$ 26,400.00
II.
Projected Costs and Suit Monies:
28
A.
Experts
Accountants (a copy of the Wife’s forensic accountant’s
litigation budget is attached hereto as Exhibit “D” )
$40,630.00
B.
Court Reporter attendance fees and transcription
Charges (depositions, hearings and trial)……………… $ 1,250.00
C.
Service of Process for Subpoenas and Witness Fees.. $ 2,800.001
TOTAL PROJECTED COSTS:……………………………………$44,680.00
SUMMARY
Billed Fees and Costs from inception through March 31, $
2005
$14,694.05
Billed Accounting Fees and Expenses from inception
through March 31, 2005
$9,180.50
+
Projected Fees
+
Projected Costs / Suit Money
Total Paid to Date
TOTAL FEES & COSTS BILLED
AND PROJECTED
+
11.
$26,400.00
$44,680.00
- $13,500.00
$81,454.55
To the best of Affiant's personal knowledge, the Wife does not have
sufficient funds of her own or any source of income that she can use to meet her above
financial obligations, whereas the Husband’s financial wherewithal is substantially
superior to that of the Wife.
_____________________________
ATTORNEY
1
The Wife expects to call medical doctors as witnesses at trial at an average cost of $400.00 per hour.
29
SWORN TO AND SUBSCRIBED before me this _________ day of May, 2005,
by ATTORNEY’S NAME of Broward County, Florida, who is personally known to me or
who produced ________________________ as identification.
(SEAL)
________________________________
NOTARY PUBLIC, State of Florida
________________________________
Print, type or stamp name of notary
30
APPENDIX “F”
IN THE CIRCUIT COURT OF THE
15TH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO.:
IN RE: THE MARRIAGE OF
,
Petitioner/Husband,
and
,
Respondent/ Wife.
_________________________________________/
SUBPOENA FOR DEPOSITION DUCES TECUM
THE STATE OF FLORIDA:
TO: Person Having the Most Knowledge Regarding
the Documents Requested
Law Offices of OPPOSING COUNSEL
ADDRESS
YOU ARE COMMANDED to appear at COURT REPORTER’S NAME AND
ADDRESS on Monday, December 12, 2005 at 10:00 a.m., and to have with you at that
time and place the following:
1.
Any and all time records, including but not limited to daily time
records of any and all attorneys and assistants working on the file, HUSBAND v.
WIFE, Case No. ________ together with any and all billing memos generated and
bills rendered to HUSBAND, from January, 2005 through the present.
2.
All records evidencing payments made by or on behalf of HUSBAND.
towards fees, costs or retainers and evidence of any and all disbursements made
by or on behalf of HUSBAND from January, 2005 through the present.
31
3.
All records evidencing payments made by or on behalf of HUSBAND
towards fees, costs or retainers and evidence of any and all disbursements made
by or on behalf of HUSBAND for professional fees and costs rendered by third
parties from the inception of this case through the present.
These items will be inspected and may be copied at that time. You will not be
required to surrender the original items. You have the right to object to the production
pursuant to this subpoena at any time before production by giving written notice to the
attorney whose name appears on this subpoena.
If you fail to:
(1)
appear as specified; or
(2)
object to this subpoena,
you may be in contempt of court. You are subpoenaed to appear by the following attorneys, an
unless excused from this subpoena by these attorneys or the court, you shall respond to this
subpoena as directed.
DATED on __________________, 2005.
As Clerk of the Court
By_____________________
As Deputy Clerk
ATTORNEY NAME
Florida Bar No. _______
LAW FIRM
Attorneys for Former Wife
ADDRESS
32
APPENDIX “G’
RETAINER AGREEMENT
AUTHORITY TO REPRESENT - CONTRACT OF EMPLOYMENT
We are pleased that you have asked NAME OF LAW FIRM to serve as your legal
counsel in connection with your marital and/or family law matter (______________________
________________________________________________________).
This
Retainer
Agreement describes the basis upon which our firm will provide legal services to you and how
we will be compensated.
FEE
An initial retainer of TEN THOUSAND DOLLARS AND NO/100 ($10,000.00) will be
required for our handling of this matter. We hereby acknowledge receipt in the amount of
$______________. This retainer shall be deemed earned upon receipt and is non-refundable
under any circumstances, irrespective of whether or not this retainer has been fully expended.
Partner # 1’s time will be billed to you at the rate of $350.00 per hour. Partner #2’s time will be
billed to you at the rate of $300.00 per hour. Associates’ time will be billed at rates ranging
between $165.00 and $250.00 per hour consistent with the standard hourly rate for the individual
associate performing services on your case. Paralegals’ time will be billed at rates between
$85.00 and $105.00 per hour, consistent with the standard hourly rate for the individual paralegal
performing services on your case. This rate schedule is adjusted from time to time. If our firm’s
standard hourly charges for legal services change, you will be provided with notice of same. It
may become necessary for us to charge an additional fee deposit and/or cost deposit if the
progress of the litigation in your case requires it. In the event we do so, the additional deposit(s)
shall be payable within fifteen (15) days of request.
CHARGEABLE TIME
Our hourly rates are applied to all time devoted to your case, including, but not limited to,
conferences, research, travel, preparation and review of pleadings, motions, discovery,
correspondence, telephone conferences, negotiations, mediations, hearing and trial time. All fees
and expenses not covered by your initial retainer (or any subsequent fee/cost deposits) are due
when billed.
COSTS
In addition to chargeable time, it is the Firm’s policy to bill for incidental expenses such
as long distance telephone calls, photocopies, facsimile, hand delivery charges, priority/express
mail and other similar expenses. You will also be billed for all direct out-of-pocket expenses
such as Court filing fees and costs, overnight express charges, and deposition expenses
33
(including the cost of transcription and court reporter fees for attendance), service of process and
subpoena costs, witness fees, accounting and appraisal fees and the fees and expenses of the
experts which we deem necessary for the proper handling of your case in preparation for trial. In
circumstances in which substantial costs can be predicted, we might request an advance cost
deposit. If there are any sums remaining from the cost deposit at the completion of your case,
you agree that such sums may be applied to any outstanding fees. Any sums remaining
thereafter will be refunded to you.
COURT AWARDED FEES
Sometimes the Court orders one party to pay all or some of the fees and costs of the other
party in a family law matter. In the event the Court orders you to pay part or all of the fees and
costs of the other party, your obligation to do so has no effect upon our fees or your obligations
under the terms of this Retainer Agreement. If the other party pays all or some of your fees, it
will be credited to your account, but will not limit our fee, nor your obligation to pay the fees and
costs for which you are billed.
PAYMENT OF FEES AND COSTS
Statements for legal services shall be rendered on a monthly basis and, once your initial
retainer (or any subsequent fee or cost deposits) is exhausted, are payable in full upon receipt. In
the event any statement (or any portion thereof) is not paid within thirty (30) days of rendition,
the unpaid portion of said statement will earn interest at the rate of 1.5% per month.
In the event it is necessary for the LAW FIRM to bring legal action to collect any fees or
costs billed in connection with your representation, the LAW FIRM shall be entitled to collect its
attorneys fees, paralegal fees and costs incurred in connection with such collection, including
payment of our normal hourly rates if we represent ourselves.
To protect all attorneys fees and costs until they are paid, the LAW FIRM is entitled to an
attorneys charging and/or retaining lien on all real and personal property, monies, assets (of any
kind, nature or description), or other things of value which we retain, preserve or protect for the
client (including non-marital assets retained by you in this action) by virtue of any legal services
rendered. You expressly agree that any legal fees and costs billed to you shall be paid out of any
recovery or the assets preserved and protected for you to the extent any fees or costs remain
outstanding upon the termination of our representation for any reason. In the event we are
discharged or otherwise withdraw as your attorneys before completion of any lawsuit that is
filed, we shall be entitled to file a lis pendens, obtain a Court Order protecting our right to a
charging lien and to have the final amount of our legal fee determined by the Court in the same
action, file an independent action in a Court of competent jurisdiction, or we may proceed with
an independent action as well as proceed in the same action to enforce our charging lien.
Should you receive any cash property settlements as part of your case, you agree to have
this money deposited into our trust account and you give us the authority to pay any balance due
34
us out of this money before transferring the balance to you, unless otherwise agreed prior to
receipt of the funds.
The provisions of this Agreement, in our discretion, may be disclosed to the Court in
connection with any application by us for fees for services that may be rendered or costs
advanced on your behalf, and we have the right to advise the Court of any amounts of fees and
costs that we have received.
We shall have the right to withdraw as your attorneys if you do not make payments
required by this Agreement, if you have misrepresented or failed to disclose material facts to us,
or if you fail to follow our advice. In any of these events, you agree to execute any documents
that may be necessary to facilitate our withdrawal.
REASONABLENESS OF FEES
You agree to carefully read all billing statements and promptly notify us, in writing, of
any claimed errors or discrepancies within ten (10) days of the date of the statement. If we do
not hear from you in writing, it is presumed that you agree with the correctness, accuracy and
fairness of the billing statement, and you therefore waive any rights that you might otherwise
have had to challenge the particular billing statement.
We do not represent clients on a fixed fee or contingency fee basis. Any figures we quote
to you for the total costs of our services are merely estimates. Your adversary, the opposing
attorney, or others involved in your case may engage in activities or take positions that are
beyond our control and that were not originally anticipated.
Our representation of you continues through the final judgment or final order disposing
of the issues presented in your lawsuit, and thereupon terminates. Any appeals, post-judgment
proceedings, or enforcement actions will be the subject matter of a separate contract of
representation.
TORT CLAIMS
Our representation does not include, and we have not been retained by you, to represent
you in or advise you about any current or potential tort claim or similar action (e.g. battery,
assault, sexually transmitted diseases, false imprisonment, intentional infliction of emotional
distress, libel, slander, fraud or misrepresentation, negligence, malicious prosecution, wrongful
institution of civil proceedings, abuse of process, interference with advantageous business
relationships, etc.). If any such actions exist, and are not brought at the same time as this
dissolution action, then you may lose your rights to bring any such action. If we are to represent
you in any such action, then you will enter into a separate agreement with us for services and
fees which may be different from the fees charged in this action.
35
Please review the foregoing and if this letter correctly sets forth the terms of our
agreement as to representation, please execute and return this Agreement with your retainer
check. Please retain a copy of this Retainer Agreement for your records. We thank you for
employing us to represent you and look forward to serving you.
Very truly yours,
LAW FIRM
_______________________________
Signature for the Firm
I understand and agree to the terms as set forth herein and do
hereby employ your services in accordance with them.
DATED this ____ day of _________________, _____.
Client: ____________________________________
Print Name: ____________________________________
36
APPENDIX “H”
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
IN RE: THE MARRIAGE OF
CASE NO.:
,
Petitioner/Husband,
and
,
Respondent/Wife.
______________________________/
NOTICE AND CLAIM OF
ATTORNEY’S CHARGING LIEN
TO:
ALL PARTIES TO THIS CAUSE AND ALL OTHERS WHOM IT MAY
CONCERN ARE HEREBY CALLED UPON TO TAKE NOTICE THAT:
The law office of LAW FIRM’S NAME AND ADDRESS, hereby files this Notice
and Claim of Attorney’s Charging Lien in the amount of _______________ as and for
unpaid compensation for legal services rendered, and expenses and disbursements
due and owing through ________________________, 2003, by Respondent, WIFE
upon all proceeds received by WIFE in this matter and upon all of her right, title and
interest in any and all real and personal property within the jurisdiction of this Court.
The attorneys’ charging lien of LAW FIRM, is superior in dignity to any other liens
subsequent to ___________________, pursuant to applicable Florida case law.
DATED this
day of AUGUST, 2003
37
APPENDIX “I”
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.
IN RE: THE MARRIAGE OF
,
Petitioner/Husband,
and
,
Respondent/Wife.
_________________________________/
MOTION TO DETERMINE AMOUNT OF CHARGING LIEN
LAW FIRM. moves this Court to determine the amount of its charging lien against WIFE
in the above-styled case and to enforce and foreclose said charging lien, and in support thereof
would show:
1.
The undersigned has a written retainer agreement with WIFE whereby WIFE
obligated herself to pay the attorney’s fees and costs incurred to represent her in this matter.
2.
The undersigned provided legal services and incurred costs on behalf of WIFE
pursuant to their agreement.
3.
WIFE has failed to pay certain attorney’s fees and costs in this matter.
4.
Simultaneously herewith, the undersigned filed a Notice and claim of Charging
Lien and Retaining Lien seeking liens against all proceeds received by WIFE in this matter and
upon all WIFE’S right, title and interest in any and all real and personal property within the
38
jurisdiction of this Court. The Notice and Claim of Attorney’s Charging Lien and Retaining
Lien is incorporated herein.
WHEREFORE, LAW FIRM. moves this Court upon evidentiary hearing, to fix and
determine the amount of said charging lien against WIFE and to enforce and foreclose said liens,
and any other relief this Court deems just and appropriate under the circumstances.
39
APPENDIX “J”
Rules Regulating The Florida Bar
Chapter 4. Rules of Professional Conduct
4-1. CLIENT-LAWYER RELATIONSHIP
Fla. Bar Reg. R. 4-1.5 (2005)
Rule 4-1.5. Fees and Costs for Legal Services
(a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. --An attorney shall not enter
into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or
cost, or a fee generated by employment that was obtained through advertising or
solicitation not in compliance with the Rules Regulating The Florida Bar. A fee or cost is
clearly excessive when:
(1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite
and firm conviction that the fee or the costs 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.
(b) Factors to Be Considered in Determining Reasonable Fee or Costs.
(1) Factors to be considered as guides in determining a reasonable fee include:
(A) the time and labor required, the novelty, complexity, and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(B) the likelihood that the acceptance of the particular employment will preclude other
employment by the lawyer;
(C) the fee, or rate of fee, customarily charged in the locality for legal services of a
comparable or similar nature;
(D) the significance of, or amount involved in, the subject matter of the representation,
40
the responsibility involved in the representation, and the results obtained;
(E) the time limitations imposed by the client or by the circumstances and, as between
attorney and client, any additional or special time demands or requests of the attorney by
the client;
(F) the nature and length of the professional relationship with the client;
(G) the experience, reputation, diligence, and ability of the lawyer or lawyers
performing the service and the skill, expertise, or efficiency of effort reflected in the actual
providing of such services; and
(H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then
whether the client's ability to pay rested to any significant degree on the outcome of the
representation.
(2) Factors to be considered as guides in determining reasonable costs include:
(A) the nature and extent of the disclosure made to the client about the costs;
(B) whether a specific agreement exists between the lawyer and client as to the costs a
client is expected to pay and how a cost is calculated that is charged to a client;
(C) the actual amount charged by third party providers of services to the attorney;
(D) whether specific costs can be identified and allocated to an individual client or a
reasonable basis exists to estimate the costs charged;
(E) the reasonable charges for providing in-house service to a client if the cost is an inhouse charge for services; and
(F) the relationship and past course of conduct between the lawyer and the client.
All costs are subject to the test of reasonableness set forth in subdivision (a) above. When
the parties have a written contract in which the method is established for charging costs,
the costs charged thereunder shall be presumed reasonable.
(c) Consideration of All Factors. --In determining a reasonable fee, the time devoted to the
representation and customary rate of fee need not be the sole or controlling factors. All
41
factors set forth in this rule should be considered, and may be applied, in justification of a
fee higher or lower than that which would result from application of only the time and rate
factors.
(d) Enforceability of Fee Contracts. --Contracts or agreements for attorney's fees between
attorney and client will ordinarily be enforceable according to the terms of such contracts or
agreements, unless found to be illegal, obtained through advertising or solicitation not in
compliance with the Rules Regulating The Florida Bar, prohibited by this rule, or clearly
excessive as defined by this rule.
(e) Duty to Communicate Basis or Rate of Fee or Costs to Client. --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.
The fact that a contract may not be in accord with these rules is an issue between the
attorney and client and a matter of professional ethics, but is not the proper basis for an
action or defense by an opposing party when fee-shifting litigation is involved.
(f) Contingent Fees. --As to contingent fees:
(1) A fee may be contingent on the outcome of the matter for which the service is
rendered, except in a matter in which a contingent fee is prohibited by subdivision (f)(3) or
by law. A contingent fee agreement shall be in writing and shall state the method by which
the fee is to be determined, including the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be
deducted from the recovery, and whether such expenses are to be deducted before or after
the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement stating the outcome of the matter and, if
there is a recovery, showing the remittance to the client and the method of its
determination.
42
(2) Every lawyer who accepts a retainer or enters into an agreement, express or implied,
for compensation for services rendered or to be rendered in any action, claim, or proceeding
whereby the lawyer's compensation is to be dependent or contingent in whole or in part
upon the successful prosecution or settlement thereof shall do so only where such fee
arrangement is reduced to a written contract, signed by the client, and by a lawyer for the
lawyer or for the law firm representing the client. No lawyer or firm may participate in the
fee without the consent of the client in writing. Each participating lawyer or law firm shall
sign the contract with the client and shall agree to assume joint legal responsibility to the
client for the performance of the services in question as if each were partners of the other
lawyer or law firm involved. The client shall be furnished with a copy of the signed contract
and any subsequent notices or consents. All provisions of this rule shall apply to such fee
contracts.
(3) A lawyer shall not enter into an arrangement for, charge, or collect:
(A) any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of alimony or support, or
property settlement in lieu thereof; or
(B) a contingent fee for representing a defendant in a criminal case.
(4) A lawyer who enters into an arrangement for, charges, or collects any fee in an action
or claim for personal injury or for property damages or for death or loss of services resulting
from personal injuries based upon tortious conduct of another, including products liability
claims, whereby the compensation is to be dependent or contingent in whole or in part upon
the successful prosecution or settlement thereof shall do so only under the following
requirements:
(A) The contract shall contain the following provisions:
(i) "The undersigned client has, before signing this contract, received and read the
statement of client's rights and understands each of the rights set forth therein. The
43
undersigned client has signed the statement and received a signed copy to refer to while
being represented by the undersigned attorney(s)."
(ii) "This contract may be cancelled by written notification to the attorney at any time
within 3 business days of the date the contract was signed, as shown below, and if cancelled
the client shall not be obligated to pay any fees to the attorney for the work performed
during that time. If the attorney has advanced funds to others in representation of the
client, the attorney is entitled to be reimbursed for such amounts as the attorney has
reasonably advanced on behalf of the client."
(B) The contract for representation of a client in a matter set forth in subdivision (f)(4)
may provide for a contingent fee arrangement as agreed upon by the client and the lawyer,
except as limited by the following provisions:
(i) Without prior court approval as specified below, any contingent fee that exceeds
the following standards shall be presumed, unless rebutted, to be clearly excessive:
a. Before the filing of an answer or the demand for appointment of arbitrators or, if
no answer is filed or no demand for appointment of arbitrators is made, the expiration of
the time period provided for such action:
1. 33 1/3% of any recovery up to $ 1 million; plus
2. 30% of any portion of the recovery between $ 1 million and $ 2 million; plus
3. 20% of any portion of the recovery exceeding $ 2 million.
b. After the filing of an answer or the demand for appointment of arbitrators or, if
no answer is filed or no demand for appointment of arbitrators is made, the expiration of
the time period provided for such action, through the entry of judgment:
1. 40% of any recovery up to $ 1 million; plus
2. 30% of any portion of the recovery between $ 1 million and $ 2 million; plus
3. 20% of any portion of the recovery exceeding $ 2 million.
c. If all defendants admit liability at the time of filing their answers and request a
44
trial only on damages:
1. 33 1/3% of any recovery up to $ 1 million; plus
2. 20% of any portion of the recovery between $ 1 million and $ 2 million; plus
3. 15% of any portion of the recovery exceeding $ 2 million.
d. An additional 5% of any recovery after institution of any appellate proceeding is
filed or post-judgment relief or action is required for recovery on the judgment.
(ii) If any client is unable to obtain an attorney of the client's choice because of the
limitations set forth in subdivision (f)(4)(B)(i), the client may petition the court in which the
matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for
the fee division, the circuit court wherein the cause of action arose, for approval of any fee
contract between the client and an attorney of the client's choosing. Such authorization shall
be given if the court determines the client has a complete understanding of the client's
rights and the terms of the proposed contract. The application for authorization of such a
contract can be filed as a separate proceeding before suit or simultaneously with the filing of
a complaint. Proceedings thereon may occur before service on the defendant and this aspect
of the file may be sealed. A petition under this subdivision shall contain a certificate showing
service on the client and, if the petition is denied, a copy of the petition and order denying
the petition shall be served on The Florida Bar in Tallahassee by the member of the bar who
filed the petition. Authorization of such a contract shall not bar subsequent inquiry as to
whether the fee actually claimed or charged is clearly excessive under subdivisions (a) and
(b).
In order to approve a fee in excess of the presumed reasonable fees stated in this
subdivision the court must determine that circumstances necessitate an upward departure.
As a general rule an upward departure from the presumed reasonable fee is not
appropriate. In reaching a determination the court shall consider the wishes of the client;
however, approval of the requested fee must be based on more than mere agreement
45
between the client and lawyer.
The analysis depends heavily on the facts of each representation. It is the responsibility of
the lawyer and client seeking approval of the fee to present sufficient facts to the court to
enable it to determine that the fee is appropriate. The petition shall inform the court of: the
wishes of the client; what efforts the client undertook to obtain counsel who is willing to
perform the representation for a fee that meets the presumption of this subdivision; the
complexity of the facts involved in the representation; the novelty or difficulty of the legal
issues presented; the length of time required for the representation; whether special
demands of the client have been placed on the lawyer; and any other information
demonstrating that the requested fee is appropriate. The court shall also consider all criteria
of subdivision (b) when reviewing the petition.
(C) Before a lawyer enters into a contingent fee contract for representation of a client in
a matter set forth in this rule, the lawyer shall provide the client with a copy of the
statement of client's rights and shall afford the client a full and complete opportunity to
understand each of the rights as set forth therein. A copy of the statement, signed by both
the client and the lawyer, shall be given to the client to retain and the lawyer shall keep a
copy in the client's file. The statement shall be retained by the lawyer with the written fee
contract and closing statement under the same conditions and requirements as subdivision
(f)(5).
(D) As to lawyers not in the same firm, a division of any fee within subdivision (f)(4)
shall be on the following basis:
(i) To the lawyer assuming primary responsibility for the legal services on behalf of
the client, a minimum of 75% of the total fee.
(ii) To the lawyer assuming secondary responsibility for the legal services on behalf of
the client, a maximum of 25% of the total fee. Any fee in excess of 25% shall be presumed
to be clearly excessive.
46
(iii) The 25% limitation shall not apply to those cases in which 2 or more lawyers or
firms accept substantially equal active participation in the providing of legal services. In
such circumstances counsel shall apply to the court in which the matter would be filed, if
litigation is necessary, or if such court will not accept jurisdiction for the fee division, the
circuit court wherein the cause of action arose, for authorization of the fee division in excess
of 25%, based upon a sworn petition signed by all counsel that shall disclose in detail those
services to be performed. The application for authorization of such a contract may be filed
as a separate proceeding before suit or simultaneously with the filing of a complaint, or
within 10 days of execution of a contract for division of fees when new counsel is engaged.
Proceedings thereon may occur before service of process on any party and this aspect of the
file may be sealed. Authorization of such contract shall not bar subsequent inquiry as to
whether the fee actually claimed or charged is clearly excessive. An application under this
subdivision shall contain a certificate showing service on the client and, if the application is
denied, a copy of the petition and order denying the petition shall be served on The Florida
Bar in Tallahassee by the member of the bar who filed the petition. Counsel may proceed
with representation of the client pending court approval.
(iv) The percentages required by this subdivision shall be applicable after deduction of
any fee payable to separate counsel retained especially for appellate purposes.
(5) In the event there is a recovery, upon the conclusion of the representation, the lawyer
shall prepare a closing statement reflecting an itemization of all costs and expenses,
together with the amount of fee received by each participating lawyer or law firm. A copy of
the closing statement shall be executed by all participating lawyers, as well as the client,
and each shall receive a copy. Each participating lawyer shall retain a copy of the written
fee contract and closing statement for 6 years after execution of the closing statement. Any
contingent fee contract and closing statement shall be available for inspection at reasonable
times by the client, by any other person upon judicial order, or by the appropriate
47
disciplinary agency.
(6) In cases in which the client is to receive a recovery that will be paid to the client on a
future structured or periodic basis, the contingent fee percentage shall be calculated only on
the cost of the structured verdict or settlement or, if the cost is unknown, on the present
money value of the structured verdict or settlement, whichever is less. If the damages and
the fee are to be paid out over the long term future schedule, this limitation does not apply.
No attorney may negotiate separately with the defendant for that attorney's fee in a
structured verdict or settlement when separate negotiations would place the attorney in a
position of conflict.
(g) Division of Fees Between Lawyers in Different Firms. --Subject to the provisions of
subdivision (f)(4)(D), a division of fee between lawyers who are not in the same firm may
be made only if the total fee is reasonable and:
(1) the division is in proportion to the services performed by each lawyer; or
(2) by written agreement with the client:
(A) each lawyer assumes joint legal responsibility for the representation and agrees to
be available for consultation with the client; and
(B) the agreement fully discloses that a division of fees will be made and the basis upon
which the division of fees will be made.
(h) Credit Plans. --A lawyer or law firm may accept payment under a credit plan. No higher
fee shall be charged and no additional charge shall be imposed by reason of a lawyer's or
law firm's participation in credit plan.
STATEMENT OF CLIENT'S RIGHTS FOR CONTINGENCY FEES.
Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you
should understand this statement of your rights as a client. This statement is not a part of
the actual contract between you and your lawyer, but, as a prospective client, you should be
aware of these rights:
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1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of
money recovered in a case. You, the client, have the right to talk with your lawyer about the
proposed fee and to bargain about the rate or percentage as in any other contract. If you do
not reach an agreement with 1 lawyer you may talk with other lawyers.
2. Any contingent fee contract must be in writing and you have 3 business days to
reconsider the contract. You may cancel the contract without any reason if you notify your
lawyer in writing within 3 business days of signing the contract. If you withdraw from the
contract within the first 3 business days, you do not owe the lawyer a fee although you may
be responsible for the lawyer's actual costs during that time. If your lawyer begins to
represent you, your lawyer may not withdraw from the case without giving you notice,
delivering necessary papers to you, and allowing you time to employ another lawyer. Often,
your lawyer must obtain court approval before withdrawing from a case. If you discharge
your lawyer without good cause after the 3-day period, you may have to pay a fee for work
the lawyer has done.
3. Before hiring a lawyer, you, the client, have the right to know about the lawyer's
education, training, and experience. If you ask, the lawyer should tell you specifically about
the lawyer's actual experience dealing with cases similar to yours. If you ask, the lawyer
should provide information about special training or knowledge and give you this
information in writing if you request it.
4. Before signing a contingent fee contract with you, a lawyer must advise you whether
the lawyer intends to handle your case alone or whether other lawyers will be helping with
the case. If your lawyer intends to refer the case to other lawyers, the lawyer should tell
you what kind of fee sharing arrangement will be made with the other lawyers. If lawyers
from different law firms will represent you, at least 1 lawyer from each law firm must sign
the contingent fee contract.
5. If your lawyer intends to refer your case to another lawyer or counsel with other
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lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the
case and later decides to refer it to another lawyer or to associate with other lawyers, you
should sign a new contract that includes the new lawyers. You, the client, also have the
right to consult with each lawyer working on your case and each lawyer is legally
responsible to represent your interests and is legally responsible for the acts of the other
lawyers involved in the case.
6. You, the client, have the right to know in advance how you will need to pay the
expenses and the legal fees at the end of the case. If you pay a deposit in advance for
costs, you may ask reasonable questions about how the money will be or has been spent
and how much of it remains unspent. Your lawyer should give a reasonable estimate about
future necessary costs. If your lawyer agrees to lend or advance you money to prepare or
research the case, you have the right to know periodically how much money your lawyer
has spent on your behalf. You also have the right to decide, after consulting with your
lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you
have the right to decide how much to spend. Your lawyer should also inform you whether
the fee will be based on the gross amount recovered or on the amount recovered minus the
costs.
7. You, the client, have the right to be told by your lawyer about possible adverse
consequences if you lose the case. Those adverse consequences might include money that
you might have to pay to your lawyer for costs and liability you might have for attorney's
fees, costs, and expenses to the other side.
8. You, the client, have the right to receive and approve a closing statement at the end of
the case before you pay any money. The statement must list all of the financial details of
the entire case, including the amount recovered, all expenses, and a precise statement of
your lawyer's fee. Until you approve the closing statement your lawyer cannot pay any
money to anyone, including you, without an appropriate order of the court. You also have
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the right to have every lawyer or law firm working on your case sign this closing statement.
9. You, the client, have the right to ask your lawyer at reasonable intervals how the case
is progressing and to have these questions answered to the best of your lawyer's ability.
10. You, the client, have the right to make the final decision regarding settlement of a
case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers
during the trial must be immediately communicated and you should consult with your
lawyer regarding whether to accept a settlement. However, you must make the final
decision to accept or reject a settlement.
11. If at any time you, the client, believe that your lawyer has charged an excessive or
illegal fee, you have the right to report the matter to The Florida Bar, the agency that
oversees the practice and behavior of all lawyers in Florida. For information on how to reach
The Florida Bar, call 850/561-5600, or contact the local bar association. Any disagreement
between you and your lawyer about a fee can be taken to court and you may wish to hire
another lawyer to help you resolve this disagreement. Usually fee disputes must be handled
in a separate lawsuit, unless your fee contract provides for arbitration. You can request, but
may not require, that a provision for arbitration (under Chapter 682, Florida Statutes, or
under the fee arbitration rule of the Rules Regulating The Florida Bar) be included in your
fee contract.
Client Signature
Date
Attorney Signature
Date
NOTES:
COMMENT
Bases or rate of fees and costs
When the lawyer has regularly represented a client, they ordinarily will have evolved an
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understanding concerning the basis or rate of the fee. The conduct of the lawyer and client
in prior relationships is relevant when analyzing the requirements of this rule. In a new
client-lawyer relationship, however, an understanding as to the fee should be promptly
established. It is not necessary to recite all the factors that underlie the basis of the fee but
only those that are directly involved in its computation. It is sufficient, for example, to state
the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify
the factors that may be taken into account in finally fixing the fee. Although hourly billing or
a fixed fee may be the most common bases for computing fees in an area of practice, these
may not be the only bases for computing fees. A lawyer should, where appropriate, discuss
alternative billing methods with the client. When developments occur during the
representation that render an earlier estimate substantially inaccurate, a revised estimate
should be provided to the client. A written statement concerning the fee reduces the
possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy
of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth.
General overhead should be accounted for in a lawyer's fee, whether the lawyer charges
hourly, flat, or contingent fees. Filing fees, transcription, and the like should be charged to
the client at the actual amount paid by the lawyer. A lawyer may agree with the client to
charge a reasonable amount for in-house costs or services. In-house costs include items
such as copying, faxing, long distance telephone, and computerized research. In-house
services include paralegal services, investigative services, accounting services, and courier
services. The lawyer should sufficiently communicate with the client regarding the costs
charged to the client so that the client understands the amount of costs being charged or
the method for calculation of those costs. Costs appearing in sufficient detail on closing
statements and approved by the parties to the transaction should meet the requirements of
this rule.
Rule 4-1.8(e) should be consulted regarding a lawyer's providing financial assistance to a
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client in connection with litigation.
Terms of payment
A lawyer may require advance payment of a fee but is obliged to return any unearned
portion. See rule 4-1.16(d). A lawyer is not, however, required to return retainers that,
pursuant to an agreement with a client, are not refundable. A lawyer may accept property in
payment for services, such as an ownership interest in an enterprise, providing this does
not involve acquisition of a proprietary interest in the cause of action or subject matter of
the litigation contrary to rule 4-1.8(i). However, a fee paid in property instead of money
may be subject to special scrutiny because it involves questions concerning both the value
of the services and the lawyer's special knowledge of the value of the property.
An agreement may not be made whose terms might induce the lawyer improperly to
curtail services for the client or perform them in a way contrary to the client's interest. For
example, a lawyer should not enter into an agreement whereby services are to be provided
only up to a stated amount when it is foreseeable that more extensive services probably will
be required, unless the situation is adequately explained to the client. Otherwise, the client
might have to bargain for further assistance in the midst of a proceeding or transaction.
However, it is proper to define the extent of services in light of the client's ability to pay. A
lawyer should not exploit a fee arrangement based primarily on hourly charges by using
wasteful procedures. When there is doubt whether a contingent fee is consistent with the
client's best interest, the lawyer should offer the client alternative bases for the fee and
explain their implications. Applicable law may impose limitations on contingent fees, such as
a ceiling on the percentage.
Rule 4-1.5(f)(3) does not apply to lawyers seeking to obtain or enforce judgments for
arrearages.
Contingent fee regulation
Subdivision (e) is intended to clarify that whether the lawyer's fee contract complies with
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these rules is a matter between the lawyer and client and an issue for professional
disciplinary enforcement. The rules and subdivision (e) are not intended to be used as
procedural weapons or defenses by others. Allowing opposing parties to assert
noncompliance with these rules as a defense, including whether the fee is fixed or
contingent, allows for potential inequity if the opposing party is allowed to escape
responsibility for their actions solely through application of these rules.
Rule 4-1.5(f)(4) should not be construed to apply to actions or claims seeking property or
other damages arising in the commercial litigation context.
Rule 4-1.5(f)(4)(B) is intended to apply only to contingent aspects of fee agreements. In
the situation where a lawyer and client enter a contract for part noncontingent and part
contingent attorney's fees, rule 4-1.5(f)(4)(B) should not be construed to apply to and
prohibit or limit the noncontingent portion of the fee agreement. An attorney could properly
charge and retain the noncontingent portion of the fee even if the matter was not
successfully prosecuted or if the noncontingent portion of the fee exceeded the schedule set
forth in rule 4-1.5(f)(4)(B). Rule 4-1.5(f)(4)(B) should, however, be construed to apply to
any additional contingent portion of such a contract when considered together with earned
noncontingent fees. Thus, under such a contract a lawyer may demand or collect only such
additional contingent fees as would not cause the total fees to exceed the schedule set forth
in rule 4-1.5(f)(4)(B).
The limitations in rule 4-1.5(f)(4)(B)(i)c are only to be applied in the case where all the
defendants admit liability at the time they file their initial answer and the trial is only on the
issue of the amount or extent of the loss or the extent of injury suffered by the client. If the
trial involves not only the issue of damages but also such questions as proximate cause,
affirmative defenses, seat belt defense, or other similar matters, the limitations are not to
be applied because of the contingent nature of the case being left for resolution by the trier
of fact.
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Rule 4-1.5(f)(4)(B)(ii) provides the limitations set forth in subdivision (f)(4)(B)(i) may be
waived by the client upon approval by the appropriate judge. This waiver provision may not
be used to authorize a lawyer to charge a client a fee that would exceed rule 4-1.5(a) or
(b). It is contemplated that this waiver provision will not be necessary except where the
client wants to retain a particular lawyer to represent the client or the case involves
complex, difficult, or novel questions of law or fact that would justify a contingent fee
greater than the schedule but not a contingent fee that would exceed rule 4-1.5(b).
Upon a petition by a client, the trial court reviewing the waiver request must grant that
request if the trial court finds the client: (a) understands the right to have the limitations in
rule 4-1.5(f)(4)(B) applied in the specific matter; and (b) understands and approves the
terms of the proposed contract. The consideration by the trial court of the waiver petition is
not to be used as an opportunity for the court to inquire into the merits or details of the
particular action or claim that is the subject of the contract.
The proceedings before the trial court and the trial court's decision on a waiver request
are to be confidential and not subject to discovery by any of the parties to the action or by
any other individual or entity except The Florida Bar. However, terms of the contract
approved by the trial court may be subject to discovery if the contract (without court
approval) was subject to discovery under applicable case law or rules of evidence.
Rule 4-1.5(f)(6) prohibits a lawyer from charging the contingent fee percentage on the
total, future value of a recovery being paid on a structured or periodic basis. This prohibition
does not apply if the lawyer's fee is being paid over the same length of time as the schedule
of payments to the client.
Contingent fees are prohibited in criminal and certain domestic relations matters. In
domestic relations cases, fees that include a bonus provision or additional fee to be
determined at a later time and based on results obtained have been held to be
impermissible contingency fees and therefore subject to restitution and disciplinary sanction
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as elsewhere stated in these Rules Regulating The Florida Bar.
Fees that provide for a bonus or additional fees and that otherwise are not prohibited
under the Rules Regulating The Florida Bar can be effective tools for structuring fees. For
example, a fee contract calling for a flat fee and the payment of a bonus based on the
amount of property retained or recovered in a general civil action is not prohibited by these
rules. However, the bonus or additional fee must be stated clearly in amount or formula for
calculation of the fee (basis or rate). Courts have held that unilateral bonus fees are
unenforceable. The test of reasonableness and other requirements of this rule apply to
permissible bonus fees.
Division of fee
A division of fee is a single billing to a client covering the fee of 2 or more lawyers who
are not in the same firm. A division of fee facilitates association of more than 1 lawyer in a
matter in which neither alone could serve the client as well, and most often is used when
the fee is contingent and the division is between a referring lawyer and a trial specialist.
Subject to the provisions of subdivision (f)(4)(D), subdivision (g) permits the lawyers to
divide a fee on either the basis of the proportion of services they render or by agreement
between the participating lawyers if all assume responsibility for the representation as a
whole and the client is advised and does not object. It does require disclosure to the client
of the share that each lawyer is to receive. Joint responsibility for the representation entails
the obligations stated in rule 4-5.1 for purposes of the matter involved.
Disputes over fees
Since the fee arbitration rule (Chapter 14) has been established by the bar to provide a
procedure for resolution of fee disputes, the lawyer should conscientiously consider
submitting to it. Where law prescribes a procedure for determining a lawyer's fee, for
example, in representation of an executor or administrator, a class, or a person entitled to a
reasonable fee as part of the measure of damages, the lawyer entitled to such a fee and a
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lawyer representing another party concerned with the fee should comply with the prescribed
procedure.
Referral fees and practices
A secondary lawyer shall not be entitled to a fee greater than the limitation set forth in
rule 4-1.5(f)(4)(D)(ii) merely because the lawyer agrees to do some or all of the following:
(a) consults with the client; (b) answers interrogatories; (c) attends depositions; (d)
reviews pleadings; (e) attends the trial; or (f) assumes joint legal responsibility to the
client. However, the provisions do not contemplate that a secondary lawyer who does more
than the above is necessarily entitled to a larger percentage of the fee than that allowed by
the limitation.
The provisions of rule 4-1.5(f)(4)(D)(iii) only apply where the participating lawyers have
for purposes of the specific case established a co-counsel relationship. The need for court
approval of a referral fee arrangement under rule 4-1.5(f)(4)(D)(iii) should only occur in a
small percentage of cases arising under rule 4-1.5(f)(4) and usually occurs prior to the
commencement of litigation or at the onset of the representation. However, in those cases
in which litigation has been commenced or the representation has already begun, approval
of the fee division should be sought within a reasonable period of time after the need for
court approval of the fee division arises.
In determining if a co-counsel relationship exists, the court should look to see if the
lawyers have established a special partnership agreement for the purpose of the specific
case or matter. If such an agreement does exist, it must provide for a sharing of services or
responsibility and the fee division is based upon a division of the services to be rendered or
the responsibility assumed. It is contemplated that a co-counsel situation would exist where
a division of responsibility is based upon, but not limited to, the following: (a) based upon
geographic considerations, the lawyers agree to divide the legal work, responsibility, and
representation in a convenient fashion. Such a situation would occur when different aspects
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of a case must be handled in different locations; (b) where the lawyers agree to divide the
legal work and representation based upon their particular expertise in the substantive areas
of law involved in the litigation; or (c) where the lawyers agree to divide the legal work and
representation along established lines of division, such as liability and damages, causation
and damages, or other similar factors.
The trial court's responsibility when reviewing an application for authorization of a fee
division under rule 4-1.5(f)(4)(D)(iii) is to determine if a co-counsel relationship exists in
that particular case. If the court determines a co-counsel relationship exists and authorizes
the fee division requested, the court does not have any responsibility to review or approve
the specific amount of the fee division agreed upon by the lawyers and the client.
Rule 4-1.5(f)(4)(D)(iv) applies to the situation where appellate counsel is retained during
the trial of the case to assist with the appeal of the case. The percentages set forth in
subdivision (f)(4)(D) are to be applicable after appellate counsel's fee is established.
However, the effect should not be to impose an unreasonable fee on the client.
Credit Plan
Credit plans include credit cards. If a lawyer accepts payment from a credit plan for an
advance of fees and costs, the amount must be held in trust in accordance with chapter 5,
Rules Regulating The Florida Bar, and the lawyer must add the lawyer's own money to the
trust account in an amount equal to the amount charged by the credit plan for doing
business with the credit plan.
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