The Presentation and Proof of Attorney Fees in Family Law Cases

• Author: James S. Bailey, Rebecca Goldmanis
• Pages: 11-14

SPRING 2020 11

rules of professional conduct. After this initial threshold is

examined, the court may apply additional analysis to

determine if the fee is objectively reasonable for the case—

frequently, this is under a “lodestar” analysis. Finally, at all

stages, a court may make adjustments to the fees to account

for improper or insucient billing and to account for

unreasonable and unnecessary fees.

Generally, under any analysis, the party requesting fees has

the burden of proving that the party is entitled to them, and

it generally remains counsel’s burden to prove and establish

the reasonableness of each dollar, and each hour, above zero.

e rst question of reasonableness will involve consider-

ation of both the reasonableness of the attorney’s hourly rate

and the necessity for the hours billed.

Methods of Establishing th e Reasonableness of Fees

Rules of Professional Conduct, Rule 1.5

Given the discretion inherent in this area, there is no precise

rule or formula for determining attorney fees, and trial courts

consider a variety of factors in determining the reasonable-

ness of a fee request. While this variation exists between

Attorney fees can be a signicant issue in

domestic cases—for both the client and

the attorney representing the client.

Generally, the trial court can award a

reasonable amount of attorney fees to one

of the parties, after the court considers the

parties’ respective nancial resources. ese awards are

almost always discretionary. In exercising its discretion, and

in determining the precise amount of an award for attorney

fees, the court will review the requested fees for “reasonable-

ness.” Almost uniformly, a court will not order one party to

pay an unreasonable fee to the other for a domestic fee

award. e obvious question becomes: what is a reasonable

fee, and how is that fee proved?

Preliminary Matters

For virtually all fee awards, the initial consideration is

whether the award of fees complies with the applicable rules

of professional conduct—a court is unlikely to require a

party to pay a fee that it believes is unethical. us, in most

jurisdictions, the initial analysis is pursuant to the applicable

The Presentation

and Proof of

Attorney Fees in

Family Law Cases

By JAMES S. BAILEY AND

REBECCA GOLDMANIS

Published in Family Advocate, Volume 42, Number 4, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.