Tag Archive for: Attorney Fee

Attorney Fees

How can I get the other side to pay my attorney fees?

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In family law cases, attorney fees are often based on the “need and ability to pay” standard. This can get quite complicated, as I am sure we all need (or at least want) someone else to pay our attorney’s fees. The problem is whether or not the other side as the ability to pay them.

In civil cases, it can be possible to get attorney fees from the other side if a contract provides for fees, or if a statute is on-point. There is an additional way: a Proposal for Settlement. This is governed by Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442.

Attorney FeesWhile the language of both can get complex, it is interesting what can happen if a party chooses to use a proposal for settlement. Recently, in RJ Reynolds and Liggett Group v. Ward, the Plaintiff sought damages from the Defendants. During the time the case was pending, the Plaintiff sent a proposal for settlement, which indicated an amount to settle the case. The Defendant did not accept the proposal. Without going into the nuances of what is required under a proposal for settlement in order to trigger an award of attorney fees, in this case, the Plaintiff received an award from the jury that was well above the proposal. The trial court determined that the Plaintiff was entitled to attorney fees. RJ Reynolds appealed.

The 1st District Court of Appeals held that the Plaintiff did not properly comply with the statute and the Rule of Civil Procedure, and strict compliance is necessary, so the award of $1,452,337.62 in attorney’s fees was reversed. The court even noted that it was clear that punitive damages (the item that wasn’t specifically included in the proposal for settlement) would have been extinguished if the tobacco companies had accepted the offer, but the supreme court made the test strict compliance, not the absence of ambiguity.

Photos in this blog are courtesy of: blog.jamessansonelaw.com, socialsecurityinsider.com

Clark Estate

Undue Influence and Fiduciary Breach Can Reverse Terms of Will In Probate, a quick look at Clark and McCormick

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Recently, there has been much publicity surrounding the estate of Huguette Clark, and the heirs and beneficiaries fighting over the vast (roughly $300 million) estate. Interestingly, when reviewing the value of the estate and the amount of attorney’s fees distributed from the estate, I couldn’t help but think about the number of attorneys salivating to get hired to represent the parties involved.
Huguette Clark
Roughly two years after her death, the interested parties reached a settlement. Interestingly, the attorney’s fees to be paid from the settlement are almost $25 million. While that number seems staggering, it is roughly 8% of the total value of the estate.

In her original will, Ms. Clark made a provision for a significant amount to be distributed to her nurse and companion, Hadassah Peri. Ms. Peri had received a substantial amount of gifts during Ms. Clark’s lifetime (approximately $31 million). In the settlement, Ms. Peri agreed to pay back the estate $5 million over the course of 6 months. The settlement also provided that if any other assets totaling over $100,000 are determined to have been given from Ms. Clark to Peri or her heirs, the estate could seek the return of additional funds from Ms. Peri, leaving her obligation to the estate open.

This case brings to mind the fiduciary duties associated with probate matters and probate litigation. In a recent case from the 3rd District Court of Appeal of Florida, McCormick v. Cox, 118 So. 3d 980 (Fla. 3rd DCA 2013). McCormick, the attorney for the decedent, prepared two trusts. McCormick was also named as the trustee.

McCormick arranged for an appraisal of the property as of the decedent’s date of death. The appraiser reported a fair market value of the property, as an operating golf course, of $2,500,000. However, billing records provided by McCormick shows he had been working to convert the property from a golf course into residential property. The appraisal McCormick used on the decedent’s estate tax return did not reflect the best use of the property, nor did McCormick communicate with the beneficiaries about the value. The property ultimately sold for $12,000,000.

McCormick also did not provide a trust accounting report to the beneficiaries until April, 2005. The trial court found this to be a “significant breach of obligation”. Then, when the property did sell, McCormick instructed the closing agent to make separate distributions to the trust, primarily to fund “trustee’s fees”, totaling over $1 million. The beneficiaries ultimately filed a lawsuit against McCormick and his firm. After a trial of 8 days, the trial court ruled, and the appellate court later upheld, the removal of McCormick as trustee, that McCormick had breached his fiduciary duty, and required McCormick to repay funds to the trust.

The Court noted that McCormick’s extraordinary and unilateral payment to himself of a seven-figure fee from trust monies, without prior disclosures of alleged entitlement and amount to either the beneficiaries or the court, constituted a flagrant breach of duty. Even when the beneficiaries learned of the funds paid to McCormick’s firm and confronted him about the amount McCormick, instead of restoring the payments or placing the disputed funds in a separate account, simply retained the funds and waited for the beneficiaries to sue him.

The trial court required McCormick (and his firm) to pay back $2,146,812 in expenses incurred due to their undervaluation of the property, found the legal fees charged were unreasonable, and required disgorgement of $1,348,000 in attorney’s and trustee’s fees.

Disputed Attorney's Fees

Disputed attorney’s fees

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In cases where attorney’s fees are a disputed issue, each party’s attorney provides an Attorney’s Fee Affidavit, which represents his or her work on a particular case. I always find it interesting to compare other attorney’s affidavits with my own bills, to determine how other firms are billing their clients. In reviewing some of those bills, I located a case, Browne v. Costales, 579 So.2d 161 (Fla. 3d DCA 1991) where the Third District Court of Appeal wasn’t exactly happy with the billing practices of the lawyer:

“Appellee’s second attorney, the recipient of a $20,000 attorney fee award, did not keep time records because he relied on ‘unit billing.’ Appellee’s counsel admitted at oral argument that his apparently silver-tongued efforts as trial counsel secured no equitable distribution, no lump sum alimony, and no permanent or rehabilitative alimony for the wife in this one and one-half year marriage; the sole result which he obtained was $10,000 in temporary support monies.”
Silver Tongued
The Court explained that unit billing is a practice where the attorney bills a predetermined number of minutes for a given task. The Court found that the attorney’s practice of unit billing was unacceptable, and “serves to fuel the opprobrium felt for the legal profession.”

The Court went on to note that the attorney had “the effrontery to explain that his unit billing included the time necessary for him to fold the paper, stuff the envelopes, and seal them (no doubt with his silver tongue).”

The Court also cited to The Florida Bar v. Richardson, 574 So.2d 60 (Fla.1990) where the Florida Supreme Court suspended an attorney, finding “absolutely no justification” for unit billing, stating: Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee, is therefore a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation. The Florida Bar v. Richardson, 574 So.2d at 62 (quoting Baruch v. Giblin, 122 Fla. 59, 164 So. 831 (1935)).