Attorney Fees: Those That Are Court Ordered

Indiana law generally allows for what we call fee shifting - one party pays the other side's attorney fees.  For background on this read my Attorney Fee FAQ from  Indiana Family Law Blog .

Last month I had a Delaware County Circuit Judge explain to me and opposing counsel his method for dividing attorney fees in a child support modification case. I never heard another judge using this method - and so far it has impressed every lawyer I mentioned it to.  ( I should add that opposing counsel, a Muncie native, appeared to be surprised when he heard the judge's idea).

The judge's method consisted of having both us multiply our fees by the percentage of each party's share of the combined weekly income found on the Child Support Worksheet.  Then to have us subtract the lesser fee from the larger fee - just as the Child Support Guidelines have us do when there is split custody.

No statute or rule created this method.  So far as I know, only one Delaware Circuit Judge employs this method.  I do think the method has more rationality than is common in deciding what fees are to be paid by or to the other side. Its rationality makes the method interesting.

Rationally ordering fees is not something I expect and stories like what Pennsylvania Family Law wrote about in Counsel Fees astound me:

Next we received a counsel fee petition.  The dependent spouse owed her counsel tens of thousands of dollars even after securing a substantial retainer. We resisted this request vigorously arguing that the facts were apparent from the beginning and the litigation almost completely unnecessary.  When the request for attorneys fees did not go in the direction she aspired, the opposing counsel filed a petition to withdraw.

The wife filed an answer professing that she had wanted to settle her case all along but that her attorney had told her the litigation was necessary and that her husband would be required to pay her attorneys fees.

We don’t know whether these allegations are true. But we can state almost without exception, that if an attorney tells a client in a domestic relations proceeding that he or she is certain to secure attorney fees in that proceeding, a second opinion should be secured. Even in cases where there is a contractual undertaking for a party breaching an agreement to pay attorneys fees, we have found that courts award such fees on a very conservative basis.  And in situations where attorneys fees are sought by reason of statutory allowance (i.e., the law expressly allows award of attorneys fees) such awards are usually a fraction of what is sought.

I suggest reading my A Phrase to Remember: Financial Attrition. for all that is wrong with the general attitude with this kind of litigation.  However, I find even more wrong with the other attorney in this story.

What lawyer in their right mind guarantees anything from a judge? Especially about fees.  Judges will cut fees or not grant fees, and there is very little that can be even on appeal.  The standard being abuse of discretion, Indiana's appellate courts will generally uphold the trial judge's decision. Some counties have been explicit about how they award some fees  So far I have cataloged  Fayette and Grant Counties (out of Howard, Henry, Madison, Delaware, and Ripley).

Locally, we had a commissioner notorious for his not allowing fees in any case.  His theory being that the lawyers needed to get some money down on a case.  (I do not have time to go into why this actually was a good thing - locally).  In a civil suit, I had another judge cut my fee to an amount that still makes no sense to me. (Nor did it make any sense to opposing counsel at the time.  His response was the the judge did it to all lawyers including himself ).  For more on Madison County fees, give my What are Lawyer's Fees in Madison County, Indiana? a look.

Just to give another side to this story, I had a Grant County case where the judge did award $1,000.00 at a provisional hearing (actually after two provisional hearings which included a protective order issues).

About the only time I can guarantee a court generally ordering a fee involves contempt cases - if one wins the case.  Even then, there is noting guaranteeing that a judge will not cut the fee from what the lawyer shows as being earned and due.