by Andrew S. Berman [n.1]

There are at least six ways to secure an award of attorneys’ fees in family law cases. In addition, there is considerable overlap among some of the methods:

Parties may contract away their right to attorneys’ fees in family law cases. See Hughes v. Hughes, 553 So.2d 197 (Fla. 2^nd DCA 1989) (waiver valid except to issue of enforcement or modification of child support order). However, suit money pendente lite, for costs incurred prior to the entry of judgment, cannot be waived by agreement. See Belcher v. Belcher, 307 So.2d 918 (Fla. 3^rd DCA 1975).

The standard under Section 57.105 is the same in family law cases as in general civil litigation matters.

3. & 4. Section 61.16 and Rosen

Section 61.16 governs the standard to be applied in determining an attorney’s fee award in a typical family law case. It requires a showing of demonstrated need by the payee and an ability to pay by the payor. In the overwhelming majority of family law cases this basic test, without more, shall apply. This analysis has been qualified, however, so that improper conduct or over-litigation by the impecunious spouse may be taken into account in particular cases in determining whether to make an award of fees and in what amount. The Supreme Court has held that, "proceedings under chapter 61 are in equity and governed by the basic rules of fairness as opposed to the strict rule of law. Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997). [n.2]  Thus, need and ability to pay may merely be a starting point for the analysis. (Although in most cases it is the end point as well, despite efforts by the payor spouse to inject Rosen issues into the mix).

Conversely, a court may award fees against a party even if it would not ordinarily do so under Section 61.16, if that party litigated in bad faith. See Rosen.

Although a pure "results obtained" or "prevailing party" approach is improper in family law cases, a court may now consider all circumstances surrounding the suit in awarding fees under chapter 61, including results obtained. Typically, this is done to reduce or deny a fee award to an impecunious spouse who engaged in improper conduct in the litigation or who overlitigated. See Rosen.

It is black letter Florida law that courts possess inherent power to impose attorneys’ fees against an attorney or party for bad faith conduct.

In Patsy v. Patsy, 666 So.2d 1045 (Fla. 4^th DCA 1996), one of the attorneys filed a motion to disqualify his opposing counsel on the ground that he had perpetrated a fraud on the court on two prior occasions. Based on the motion, all proceedings were stayed pending an evidentiary hearing. The hearing revealed that the motion was a sham, had no factual basis, and was filed solely to delay the proceedings. As a result, attorneys’ fees were assessed against the attorney for the delay costs, approximately $1,870. On appeal, the attorney argued that there was no statutory basis for the award of fees. The Fourth District agreed, but held that "[t]he fact that no statute or rule authorizes the imposition of attorneys’ fees against counsel for litigating in bad faith, however, does not preclude courts from doing so under the ‘inherent power possessed by the courts.’" Patsy at 1047 (citing Sanchez, 435 So.2d 347, 350).

In Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002), the former wife’s counsel subpoenaed former husband and two of his former attorneys, conceding in her motion that at least one of the attorneys was not in possession of the original promissory note which she was awarded in her final dissolution, and which she was seeking. The trial court concluded that there was no basis for the subpoena to Smallwood, and the Third District affirmed. The Florida Supreme Court started from premise that trial courts have the inherent authority to assess attorneys’ fees for attorney misconduct during the course of litigation. [n.3] Moakley at 224. This stems from the court’s inherent power to "do those things necessary to enforce its orders, to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice." Id. (citations omitted). However,

Id. at 226. This chilling effect, thus, is dampened by the requirement that the trial court’s inherent authority carry with it the "obligation of restrained use and due process." Id. As such, the court’s exercise of their inherent authority "must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees." Id. As a final consideration, the amount awarded must be in proportion to the amount incurred as a result of the specific bad faith conduct. See Id.

In Diaz v. Diaz, 826 So.2d 229 (Fla. 2002), [n.4] the Florida Supreme Court reiterated its holding in Moakley, and in quashing the lower court’s award of attorneys’ fees, noted that "a finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings. ... [S]uch a sanction is appropriate only after notice and an opportunity to be heard - including the opportunity to present witnesses and other evidence." Diaz at 231.

In Sanchez v. Sanchez, 435 So.2d 347 (Fla. 3^rd DCA 1983), the former wife’s attorney refused to cooperate with opposing counsel in correcting a scrivener’s error. In affirming the trial court’s assessment of attorneys’ fees against former wife’s counsel, the Third District stated that

Id. at 349 (emphasis added). Rectifying the judgment was not substantive in nature, but rather mere "procedural automatism;" former wife’s counsel was not acting appropriately in resisting the attempts by former husband’s counsel to correct the scrivener’s error. Id. Accordingly, an award of attorneys’ fees against lawyer in the amount necessary to correct the judgment, was proper. [n.5]

In Mettler v. Mettler, 569 So.2d 496 (Fla. 4^th DCA 1990), the court explained the lower court’s award of attorneys’ fees as not a punitive measure, but based upon the additional work made necessary by appellant’s conduct. The Fourth District made reference to the lower court’s final judgment, which,

Id. at 498. The Fourth District held that appellant’s conduct

Id. In so much as the award of attorneys’ fees was based upon the extra work necessary as a result of the former wife’s conduct, it was proper.

In Rosa v. Rosa, 723 So.2d 312 (Fla. 4^th DCA 1998), the Fourth District refused to reverse an award of attorneys’s fees against former wife who had a negative net worth and negative income. The court tracked the language in Mettler, stating

"The inequitable conduct doctrine permits the award of attorneys’ fees where one party has exhibited egregious conduct or acted in bad faith." Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla. 1998). Although rarely applicable, "[i]t is reserved for those extreme cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. (citations and internal quotation marks omitted). "Bad faith may be found not only in the actions that led to the lawsuit, but also in the conduct of the litigation [itself]. Id.

In Bitterman, the court applied the inequitable conduct doctrine to award fees against a party who consistently raised frivolous objections to his father’s will’s provisions, orchestrated "endless discovery games," caused the estate’s first administrator ad litem to withdraw due to the threat of a fee challenge, had his own attorneys file invalidity challenges to provisions in the will, after acknowledging on the record that at least one of the provisions was clear and unambiguous, and frequently thwarted settlement negotiations by interjecting additional demands. [n.6]  This conduct, the court said, "was the type of conduct for which the inequitable conduct doctrine was intended to apply." Id. at 365.

Whether the "results obtained" language alluded to in Rosen and set forth in Rule 4-1.5 of the Rules Regulating The Florida Bar (as an element in determining a reasonable attorneys’ fee) enables a lawyer to contract with his or her own client for a bonus or "results obtained" fee has been answered in the negative. A "bonus provision" in the context of family law cases is improper. To be sure, such a provision will have the effect of voiding the attorney’s entire retainer agreement altogether, King v. Young, Berkman, et. al., 709 So.2d 572 (Fla. 3^rd DCA 1998), which will limit the lawyer to quantum meruit. Id. In King the court determined that the sum billed by the hour was the quantum meruit fee. But see the concurring opinion, which suggests that there may be no dollar for dollar correlation between hours billed and quantum meruit.

In essence "results obtained" has, to date, been utilized to reduce or eliminate the obligation to pay fees, but it has not yet been used, in any reported decision, to enhance a fee award above a reasonable hourly rate times a reasonable number of hours. But see, Salter v. St. Jean, 170 So.2d 94 (Fla. 3d DCA 1964), which held that the proscription against contingency fees in a family law case did not apply where the lawyer was securing or retrieving non-marital assets for his client.

The "unit billing" approach is highly disfavored. In Browne v. Costales, 579 So.2d 161 (Fla. 3^rd DCA 1991), the "Silver Tongue" case, the Third District showed its amazement at the billing practices of appellee’s attorney, noting that "[h]e 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 "units" were billed at $250.00 per hour." Id.

Additionally, excessive fee structures may subject a lawyer to disciplinary sanction. See The Florida Bar v. Richardson, 574 So.2d 60 (Fla. 1990) (all time a lawyer spends on a case is not necessarily amount of time for which he can properly bill; time was clearly excessive as was fee structure; lawyer suspended 91 days). In The Florida Bar v. Carlon, 820 So.2d 891 (Fla. 2002), the attorney was found in two separate instances to have excessively overbilled his clients. In the first he charged a client $3,340.10 for "assisting" her in amending a foreign divorce decree and securing an asset. In reality, however, the client was forced to hire another attorney to take the case due to Carlon’s inaction in the matter. The other attorney got an amended decree and secured the asset, for a total fee of $404.00. Carlon’s work, for almost ten times the cost, was limited to soliciting the interest of other attorneys he had located in Martindale-Hubbell. In the second case, Carlon charged and received $11,080.00 in connection with the administration of the estate of his clients’ mother. Expert testimony revealed that the most the administration should have cost was $3,500, with anything in excess of $6,000 being "clearly excessive." Carlon received a ninety-one day suspension.

In Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991), the Second District was faced with an incredible waste of meager marital assets to fund avoidable litigation. It held that a trial court clearly has the power to prevent parties from wasting marital assets that are needed for children or future alimony and it encouraged them to exercise it. Trial judges should take a more active role to stop wasteful litigation through early case management conferences and ensuring that attorneys explain to their clients that their willingness to engage in needless litigation may reduce their distribution of marital assets.

In sum, the input of attorney time and the amount charged must bear a reasonable relationship to the amount at issue and the significance of the issues to be addressed. Unfortunately, handling modest matters sometimes requires the same amount of attorney time as if the case involved millions. It is up to the lawyer, however, to explain financial limitations at the outset to avoid the kinds of adverse results (for the client and lawyer) that courts are now more willing to impose in order to reign in excessive fees and billing.

ENDNOTES:

1.  Special thanks to my law clerk, Jason L. Molder, for his help in the preparation of this material.

2.  Rosen was a reaffirmation of many of the cases discussed in Section 5.

3.  The Florida Supreme Court in Moakley recognized that in finding this inherent authority, many jurisdictions rely upon the United States Supreme Court’s decision in Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980).

4.  This opinion was released on February 28, 2002, the same day as the opinion in Moakley v. Smallwood.

5.  The court noted that "[b]ecause the wife’s attorney could not properly have proceeded along his wasteful course at the wife’s direction, we hold, as a matter of law, that he was acting upon his own interests when he made necessary the totally unnecessary consumption of judicial effort involved in correcting the written judgment. As a consequence, the wife’s attorney himself became liable for the husband’s attorney’s fees." Sanchez at 350.

6.  In one settlement negotiation, Stephan Bitterman indicated that any settlement would be contingent on him being written into his mother’s will, so that he would have some control over the money she would take from his father’s estate.