Chapter 13.11 Establishing the Reasonableness of Attorney Fees and Costs

• Jurisdiction: Washington

§13.11 ESTABLISHING THE REASONABLENESS OF ATTORNEY FEES AND COSTS

The attorney fees charged must be reasonable. See In re Estate of Larson, 103 Wn.2d 517, 521-22, 694 P.2d 1051 (1985). But see Fred Hutchinson Cancer Research Center, 107 Wn.2d 693, 717, 732 P.2d 974 (1987). Under RPC 1.5(a), the factors considered in determining reasonableness include

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client; [and]

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(7) the experience, reputation, and ability of the lawyer or lawyers performing the services[.]

The Court of Appeals has additionally stated:

[T]he determination of what fees are reasonable involves more than simply multiplying the number of hours spent on a given case times a specific rate. An attorney must use judgment and discretion in rendering a bill. This includes recognizing the limits of one's own inefficiencies .... A substantive analysis must also be made; first, by the attorney to determine what fees to charge; and second, by the court to determine what to award.

In re Guardianship of Hallauer, 44 Wn.App. 795, 800, 723 P.2d 1161 (1986).

(1) Burden of establishing reasonableness

The party requesting fees has the burden of demonstrating the need for and reasonableness of its attorney fees. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 151, 859 P.2d 1210 (1993); In re Estate of Morris, 89 Wn.App. 431, 434, 949 P.2d 401 (1998). The award must be based on the record, not on mere estimation or conjecture. Austin v. U.S. Bank of Wash., 73 Wn.App. 293, 309-10, 869 P.2d 404, review denied, 124 Wn.2d 1015 (1994).

(a) Documentation

The attorney must provide documentation of work performed. Bowers v. Transam. Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983). The documentation need not provide exhaustive detail, but it must inform the court, in addition to the number of hours worked, about the type of work performed and the category of attorney who performed the work (i.e., partner, associate, paralegal, etc.). Id. at 597. Instead of merely relying on the billing records, however, the court should make an independent decision as to what represents a reasonable amount for attorney fees. Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208 (1987).

Comment: There is no right to present oral argument on a fee request. Oral argument is not a due process right and the opportunity to present written submissions is enough. In re Estate of Servold, 143 Wn.App. 1008, Nos 58502-9-I, 58881-8-I, 2008 WL 435539, at *7 (Feb. 18, 2008) (unpublished).

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(b) Expert opinions on reasonableness

In arriving at a determination of reasonable fees, the trial court may be aided by expert opinion as to the reasonable rates and the reasonable time expended. Scott Fetzer, 122 Wn.2d at 156; In re Estate of Coffin, 7 Wn.App. 256, 266, 268, 499 P.2d 223, review denied, 81 Wn.2d 1007 (1972) ("expert testimony on attorney fees is substantial evidence"). All that is required is an affidavit of a probate, estate, and trust practitioner who can testify as to the range of rates customarily charged by lawyers practicing in the area. Generally, however, the testimony of expert witnesses on the issue of the value of legal services is not essential. Brown v. State Farm Fire and Cas. Co., 66 Wn.App. 273, 283, 831 P.2d 1122 (1992).

The court, either trial or...