as a Compensable Component of Attorney Fee Awards Recovery of reasonable attorney fees for work done by legal assistant
Helpful notes, below, on “reasonable attorney fee” law and tactics (helpful in advancing your thinking).
However, instead of reading the few notes on this page and the associated pages on this website, you may want to instead buy a short handbook which will give you more information and present it in a format you can keep at hand in your office. If so, Bucklin’s handbook on attorney fees may be what you would prefer.
Length of 199 pages (including the pages of forms) makes this handbook readable in a few hours, to guide you in an attorney fee award dispute. Includes forms for preventing mistakes and saving time.
Eight Factors of a Reasonable Fee. Most court decisions use eight factors in determining a reasonable fee. The Texas Supreme Court is representative of the majority of the states. In Texas the following are the relevant factors that should be considered (and thus can be put into evidence as relevant) in determining what is a reasonable attorney fee. [They are traditionally considered as only eight items, but really the first item, which has to do with the hourly fee rate multiplied by the hours of time, can be broken down into 3 sub items.] See Arthur Anderson & Co. v. Perry Equipment Corp., 945 SW2d 812 (TX, 1997) (citing TX Disc. Sec 1.04) R. Prof. Conduct
- The hours of time needed, and the skill level needed during those hours, considered in the sub items of
- a. The time and labor required,
- b. the novelty and difficulty of the questions involved, and
- c. the skill required to perform the legal service properly.
- The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer.
- The fee customarily charged in the locality or by the circumstances.
- The amount involved and the results obtained.
- The time limitations imposed by the client or by the circumstances.
- The nature and length of the professional relationship with the client.
- The experience, reputation, and ability of the lawyer performing the services
- Whether the fee is fixed or contingent on results obtained, and the uncertainty of actual collection of the fee when due.
The usual formula of Texas courts is to say that it will consider the factors contained within the Disciplinary Rules of Professional Conduct in determining whether the fees were reasonable and necessary, and to stay only with those factors. [Cf. Bocquet, 972 S.W.2d at 21-22, citing TEX.DISCIPLINARY R. PROF. CONDUCT 1.04] The enumerated factors are the eight factors set out above.
Note: Some state and federal courts recast the second item sometimes as “the undesirability of the case”, and the third item as “awards in similar cases” E.g., see, Johnson v. George Highway Express, Inc., 488 F2d 714 (5th Cir. 1974).
Time Records. Expert testimony needs a base. Attorneys seeking fees must keep time records! In Heritage Resources, Inc. v Hill 8th Court of Appeals – El Paso February 13, 2003 – 08-01-00383-CV, the appeals court said it might have awarded more, but the evidence was hampered by the fact that no time records were maintained by the attorneys, their legal assistants or staff for the 9,150 billable hours claimed, with the result that 100 hours of time were deemed reasonable and equitable for the time involved in the case.
Lodestar Fee. Many courts dotheir analysis of the eight factors by using two of the factors to determine a so-called “lodestar fee,” and then using the others of the eight factors as modifiers of the lodestar amount. E.g., see, City of Bismarck v. Thom (ND, 1977) stating that the base for determining a reasonable fee is found by multiplying the number of hours expended by each attorney by the hourly rate normally charged for similar work by attorneys of like skill in the area. The court noted that it was for similar work by attorneys of like skill, which is not necessarily the same as the average hourly rate of all attorneys in the area. When this base rate is established than other less objective factors are introduced to determine a reasonable fee.
Reasonable Hours is not equivalent to Least Hours Needed. Norman, 836 F.2d at 1305-06. (“The court on reconsideration should bear in mind that the measure of reasonable hours is determined by the profession’s judgment of the time that may be conscionably billed and not the least time in which it might theoretically have been done.”)
Legal Assistant Hours. The Evidence Required to Prove the Validity of Legal Assistant Fees as a Compensable Component of Attorney Fee Awards is discussed by Vicki Kelly Britain at 63 Texas Bar Journal 261 (2000). Although Texas courts have approved legal assistant hourly rates of $90 an hour (e.g., In the Interest of JLB, 1999 Tex. App. LEXIS 4901), often legal assistant fees have been disapproved in whole or in part. Often the key to getting the legal assistant’s fees approved (or disapproved) as legal fees is the testimony of an expert.
Available Statistical Evidence. Persons starting to think about reasonable rates of attorney fees per hour might start with some of the statistical resources offered by a state bar associations. Ask the state bar association involved whether they have done studies or surveys on what attorneys in the state charge per hour.
Contingency Fee Cases. In Arthur Anderson & Co., v. Perry Equipment Corp. (Texas, 1997) the Texas Supreme Court held that evidence of a contingency fee contract by itself cannot support an award of reasonable attorney’s fees. The plaintiff must present evidence of the reasonableness and necessity of fees that conforms to eight factors, which the Texas Disciplinary Rules use in defining “reasonable fee.”
Most states take a similar approach when the actual fee contract under which the lawyer handled the case is a contingency percentage fee.
Case Law. More on the law of reasonable attorney fees
Attorney Fee Awards: A Handbook The compact handbook for any attorney fighting to win, or defeat, an award of attorney’s fees
The most common alternative billing methods.
- The hourly fee.
- The fixed fee,
- The segmented fixed fee, a.k.a., the task-based fee. Specific items of service carry standard charges.
- Plaintiff’s contingency fee. .
- The defense contingency — The lawyer and client determine a goal, in a dollar number, of would represent the usual expected result. If the matter is resolved for less than the goal amount set, the lawyer gets a percentage of savings. If the matter is resolved for more than the amount set, the lawyer reduces his hourly fee by a percentage.
- Retainer fee — A set charge for a range of legal services over a particular period of time.
- A variation of this is the availability- only retainer where a fee is paid only to insure that the lawyer will be available. Specific services are charged separately.
- A variation of this is the retainer trust account. A retainer amount is paid into the lawyer’s trust account and used to pay fees as they occur. This is sometimes combined with the availability – only retainer with the agreement that a certain amount if unused at the end of the period will be paid to the lawyer for staying available.
- Combination hourly rate (or flat fee) and contingency based on result. — A reduced hourly fee plus a reduced contingency fee. This can be used when the client cannot afford a straight hourly fee and the lawyer cannot take the risk of a full contingency arrangement.