Under the “American Rule”, each party to a lawsuit pays his own costs, irrespective of who won or lost. This rule allows individuals to pursue litigation without fear that costs will be excessive. There are exceptions, however, where costs are allocated to the losing side under certain circumstances.
An award of attorney’s fees and costs may be granted based on (1) the relative circumstances of the parties; and/or (2) the conduct of the parties’ and/or their attorney that frustrates potential settlement, including any bad faith actions.
Therefore, if one spouse/parent makes a significant amount more than the other party, an attorney’s fee award may be properly made. However, it is important to note that this is only where the disparity in income in significant.
The Code goes on to state that “In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award.”.
The court does not take a motion for attorney’s fees lightly, and as such, a justifiable need for the other party to contribute to one’s fees and costs must be adequately demonstrated. However, financial need is not the only way to seek assistance from the other party with one’s fees.
There have been many attempts to change the general rule to a “loser pays” system, but for now, the American Rule is still the majority rule. Even where the other party has acted particularly bad and is required to pay punitive damages, each party will be required to pay its own fees. The most commonly cited reason for following this rule is to avoid discouraging parties from seeking legal remedies in court. Where someone is wronged by another party, we do not want to prevent them from bringing a legal action simply because of a fear that they will have to pay the other party’s legal fees. This is particularly true where there is a substantial financial disparity between the parties.
Where someone is wronged by another party, we do not want to prevent them from bringing a legal action simply because of a fear that they will have to pay the other party’s legal fees. This is particularly true where there is a substantial financial disparity between the parties.
The most common argument in favor of a “loser pays” rule is that it would discourage frivolous suits. However, statistics show that the percentage of cases that can be fairly described as “frivolous” is far smaller than represented to the public. According to one site ( here ), the Rand Institute for Civil Justice found that since 1991, only 10 percent of injured people seek compensation and only 2 percent file lawsuits. Additionally, injury suits only make up about 6% of all cases that are filed. If you are concerned that the cost of a lawyer is too high, consider this from an earlier blog post.
One of the most frequent questions clients ask is whether the defendant in their lawsuit (or the insurance company who is paying the claim) can be forced to pay the clients’ attorney fees. In almost all cases, the answer to that question is “no.”
Lawyers frequently try to coerce payment by asserting an “attorneys’ lien” on all or part of a former client’s case file pending receipt of payment. Depending on whether the case or transaction is over, this can leave the client in the unenviable position of having to pay the fee to get much-needed papers for an ongoing legal matter. However, in practice a client operating in good faith has little to fear. If the client has a need for the documents in an ongoing matter, and a good faith basis for not paying a portion of the fee, lawyers cannot withhold critical papers. Even after the attorney-client relationship is over, the lawyer has a duty to assist in an orderly transition to replacement counsel to minimize prejudice to his former client.
The downside of not raising billing concerns with your lawyer is substantial. You lose the chance to obtain a mutually-agreed upon reduction. The billing practice that offends you will no doubt continue. Finally, if the fee dispute ever gets litigated or arbitrated, your lawyer will claim that you consented to the disputed billing practice.
Lawyers will often refer to agreements they have with clients, typically drafted by the lawyer at the beginning of the engagement, as evidence that a client agreed to certain payment terms. For example, there may be agreement as to hourly rates, staffing, or contemplated courses of action.
Despite this, lawyers often tell their clients they are entitled to a “bonus” over the agreed-upon fee because the matter has become more difficult than expected or because of an unexpectedly favorable result. It is common for such a lawyer to “negotiate” the increased fee in the middle of an engagement.
There are steps you can take both during and after the engagement to communicate your concerns to your lawyer. Appropriate questioning of bills often leads to a mutually-agreed upon reduction, and can even strengthen the attorney-client relationship. Should all else fail, fee dispute litigation provides substantial relief from some relatively common examples of attorney overbilling, while protecting an attorney’s right to a reasonable fee. Ten points for clients to consider:
In an effort to ensure that lawyers do not use superior experience or negotiating skills in drafting agreements with their clients, the Code of Professional Conduct and Responsibility that applies to all lawyers in New York State (other states have similar or identical codes) provides that an attorney “shall not enter into an agreement for, charge or collect an illegal or excessive fee.” DR 2-106 [A].
If your lawyer is unwilling to discuss the bills, you should put your concerns in writing, and consider ending the relationship.
To request fees during a divorce, one spouse must file a Request for Order with the court. The Court will schedule a court hearing for you and your spouse to ‘argue’ your respective positions and then the judge will make a decision.
Some examples of when fees as “sanctions” may be appropriate income (but are not limited to): 1. Withholding important information about your child’s health or welfare from the other spouse; 2.
When deciding whether or not to order fees, the judge will look to each of your “need” and “ability to pay.” In other words, do you (or your spouse) have the ability to pay for your representation and that of your spouse? The judge will also look to see whether there is a ‘disparity in access to funds’ to retain an attorney. Even if both spouse’s are ‘well off’, the court can award fees if one spouse has significantly more income, assets and/or liquidity. Since California is a ‘no fault’ divorce state, fees are not awarded for ‘bad’ behavior outside the context of the divorce action. So, for example, if the reason you are obtaining a divorce is because your spouse habitually cheated on you, the court will not consider that as a basis for awarding you fees. However, there are limited circumstances when a spouse will be forced to pay fees for ‘bad’ behavior within the divorce action itself (see below, ‘fees as sanctions’).
The issues that need to be resolved in your divorce are property & debt, child custody, child support and spousal support. Additionally, attorney fees need to be considered and resolved in a way that makes sense for you and your spouse. The Family Code allows the court to award fees in the amount that are “reasonably necessary” to properly litigate ...
The Family Code allows the court to award fees in the amount that are “reasonably necessary” to properly litigate and/or negotiate a divorce. “Need based” fees can be requested at any point during your divorce.
As with “need based” fees, either party may request “sanction” fees from the other spouse by filing a “Request for Order” with the court.
Since California is a ‘no fault’ divorce state, fees are not awarded for ‘bad’ behavior outside the context ...