Office of Bar Counsel

• Publication year: 2016
• Pages: 14

Office of Bar Counsel Vol. 39 No. 2 Pg. 14 Wyoming Bar Journal April, 2016

Mark W. Gifford Bar Counsel

Ethical Considerations in Seeking a Court Award of Attorney Fees

A recent decision of the Wyoming Supreme Court has ethical implications that should be kept in mind by lawyers who seek a court award of attorney fees. Dishman v. First Interstate Bank^[1] was a judicial foreclosure action brought by the lender ("FIB") to recover on a $20,000 line of credit secured by a mortgage on the borrower's house. The loan agreement provided for recovery of attorney fees in favor of the lender in the event collection efforts were necessary. The district court granted partial summary judgment in the amount of $24,631.42, which included the principal amount owing, accrued interest and most of FIB's costs, but ordered a bench trial to determine the amount of attorney fees owed.

Before trial, FIB filed a motion for in camera review of its unredacted verified statement of costs and attorney fees, asserting that the billing statement contained confidential information protected by the attorney-client privilege. The district court denied the motion for in camera review and the matter proceeded to trial. FIB offered evidence that its attorney fees and costs amounted to $20,615.49, which included the cost of hiring an expert witness for the purpose of proving reasonableness of fees and costs. The district court denied recovery of the experts fees and entered an attorney fee judgment in favor of FIB in the amount of$18,220.99.

On appeal, Dishman challenged the attorney fee award on both procedural and substantive grounds. The Court began its analysis with a review of general law on attorney fee awards:

Wyoming subscribes to the American rule regarding recovery of attorney fees. The rule makes each party responsible for its own fees unless an award is permitted by contract or statute. The party who is seeking an award of fees has the burden of proving the reasonableness of the claimed fees. To meet that burden, the claimant must present an itemized billing reflecting the time and the rate and evidence demonstrating the fee was reasonable. The claimant must show the "nature of the service performed, the time expended, and the hourly fee customarily charged for such service." As part of his duty to claim only reasonable fees, an attorney must exercise "billing judgment." Billing judgment is usually shown by the attorney writing off unproductive, excessive, or redundant hours. An affidavit from a party or an...