We write about this because family lawyers hear about it every day. Settling cases in family law is not easy. “Winning” a family law case is even more difficult because rarely does a court make either party a winner and I had many wins which my clients perceived as losses or “Meh…”
Fighting in and out of court is expensive and clients typically see their side as the only one infected with reason. Just about every family law statute allows courts to award counsel fees. Yet, these awards are far from routine. How come?
This topic came to mind this week because of a civil sexual harassment claim that took on a life of its own. Actress Blake Lively filed such a claim against fellow actor Justin Baldoni. Baldoni sued her for $250 million in damages. His suit was dismissed as improperly filed and Ms. Lively sought attorney’s fees because of it. Last week the court awarded her $400,000. She claimed to have spent $8 million in defending a claim that never went to trial. Ironically, both sides declared victory even though Baldoni has to pay and Lively got 5% of the attorney’s fees she sought.
Courts approach counsel fee claims with skepticism. They don’t want encourage judicial warfare. But they also want to discourage folks like Mr. Baldoni from filing suits that appear to have no substantive merit. They also know that when pursuing counsel fee claims, attorneys can litigate with a heavy hand on the hourly clock by which they charge.
The leading case in Pennsylvania addressing counsel fee requests is an old one: Estate of LaRocca, 246 A.2d 337 (1968). The case informs judges that when assessing fees courts are to look at the “labor, skills, and responsibilities” undertaken by the attorneys as well as the prevailing rates charged by attorneys at the “time and place” of the litigation. That assessment includes the value of the amount in controversy. Appellate courts are discouraged from second guessing trial courts in this arena.
LaRocca may be applied differently and more liberally in a setting where there is an agreement for a party breaching an agreement to pay counsel fees. The highlight of this summer was the $144 millioncounsel fee fight in Delaware between J.P. Morgan and Charlie Javice. Courts want agreed upon counsel fee agreements to have “teeth” that will encourage compliance with the terms of written agreements.
The points here are: (1) if you have an agreement that says a breaching party pays attorney’s fees and you can show a breach, you may get a handsome award. But LaRocca standards ordinarily still apply. (2) if you can show bad faith on the part of your opponent, there are statutes that can be helpful. 42 Pa.C.S. 8230; 42 Pa. 8351. The divorce (23 Pa. C.S. 3702), custody (23 Pa. C.S. 5339) and support (23 Pa. C.S. 4351) laws also allow these awards. But courts are wary to enter steep dollar awards under those statutes unless the conduct is egregious. They are governed by Pa.R.C.P. 1717. As one judicial colleague summed it up: “The fact that you drove to my rural county from a city where you command $1,000 an hour does not make your service merit counsel fees based on that rate, even if you may prevail.”
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