Key Considerations for Seeking An Award of Attorney's Fees
(by Adam Rabin and Rob Glass)
Attorney's fees disputes are often hotly contested. Once the court determines entitlement, the parties may vary widely on their respective assessments of reasonableness. Before submitting materials regarding the reasonableness of the amount of fees and reasonable hourly rates for attorneys, practitioners should be aware of the key authorities below.
- Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Tomaino v. Tomaino, 629 So. 2d 874 (Fla. 4th DCA 1993)
- Baratta v. Valley Oak Homeowners' Association at the Vineyards, Inc., 928 So. 2d 495 (Fla. 2d DCA 2006)
- Centex-Rooney Construction Co. v. Martin County, 725 So. 2d 1255 (Fla. 4th DCA 1999)
- In re Estate of Platt, 586 So. 2d 328 (Fla. 1991)
- Section 57.104, Florida Statutes
Under Rowe, the Florida Supreme Court's seminal case on reasonable attorney's fees, a court must first decide the number of hours "reasonably expended" on the litigation. The court then must determine a reasonable hourly rate for the attorney. Multiplying these two numbers together provides an "objective basis" for the award, which can be adjusted based on contingency risk or the specific results obtained. "Reasonableness" is determined by reference to the factors discussed in Rowe and the similar factors listed in Rule 4-1.5 of the Rules Regulating the Florida Bar.
In this family law case, the Fourth DCA reviewed an award of attorney's fees to the wife, where the wife hired two attorneys to represent her in the divorce action one local, and one from out of state. The court reiterated that the wife was "free to hire whomever she want[ed] to represent her." The court reversed the award, however, finding that the work performed by both was duplicative. The court explained that "[i]t does not require one three hundred dollar an hour attorney to review the work of another equally expensive attorney." Id. at 875. The court found that efforts by both attorneys "prominent, skilled members of the marital bar" to appear at hearings, depositions, and trial was excessive under the circumstances. The court was careful to explain that the "assistance of associates" would not necessarily be deemed duplicative a point recently reaffirmed in Mitchell v. Mitchell, 94 So. 3d 706 (Fla. 4th DCA 2012).
In Baratta, a homeowner appealed an award of attorney's fees in favor of a homeowners' association after the case was dismissed. The Second DCA reversed the award, finding that the trial court failed to make sufficient factual findings regarding certain Rowe factors. The court provided some general "guidance" regarding reasonableness. First, "duplicative time charged by multiple attorneys working on the case is usually not compensable." Id. at 499. Second, "work that is necessitated by the client's own behavior should more properly be paid by the client than by the opposing party." Id. Third, attorney's fees should not usually be awarded for claims on which the moving party was unsuccessful." Id.
In Centex-Rooney, Martin County sought damages for the defective construction of its new courthouse. After obtaining a verdict for damages, the county sought an award of $1.8 million in fees for the five-year litigation. The construction company appealed the fee award, contesting the reasonableness of the amount. In upholding the award, the court noted certain exceptions to the general rules discussed above. For instance, the court explained that an award of fees for the work of multiple attorneys is permitted so long as the services rendered by each attorney are necessary and not duplicative. The court explained that multiple attorney conferences, which are frequently targeted as unnecessary, may be appropriate in a complex case to avoid any duplication of attorney efforts. Close calls will hinge on the complexity of the litigation. Ultimately, while the movant bears the burden of establishing the reasonableness of the fee award, the opponent bears the burden of identifying "with specificity which hours should be deducted," as where time is duplicative or unnecessary. Id. at 1259.
In this case, the Florida Supreme Court discussed the applicability of Rowe and the lodestar approach to probate litigation. In the process, the court also discussed what constitutes a "reasonable" hourly rate for an attorney. The court explained, for purposes of taxing attorney's fees against the opposing party, "a trial court is not bound to accept the hourly rate asserted by counsel who performed the service." Id. at 334. The court also emphasized that a reasonable rate is that charged in the community by lawyers of similar skill and experience for similar services.
Practitioners should also be aware of section 57.104, Florida Statutes, which governs fees recoverable for work performed by legal assistants and paralegals. Fees for such work may be awarded when the work constitutes "nonclerical, meaningful legal support to the matter" and when the non-attorney works under the supervision of a licensed member of the Bar. Examples of work that is compensable include legal research, case development or planning, preparation or interpretation of legal documents, or compilation and use of technical information from reference materials. Typical "clerical work," such as sending mail or e-mail to the clerk or the opposing party, scheduling a hearing, or "file maintenance" is not compensable under this statute. See Youngblood v. Youngblood, 91 So. 3d 190 (Fla. 2d DCA 2012).
To determine and demonstrate the reasonableness of an award of attorney's fees, there are certain key cases and propositions of law that a lawyer needs to know. These authorities relate to the number of hours, the rate, and the tasks which may or may not be reasonable given the facts of the case. With a working knowledge of these cases, the lawyer will be able to spend more time focusing on getting the best result for his or her client.