How To Support A Claim For Attorney Fees – A Recent Clinic

Lawyers oftentimes ask for an award of attorney fees in their requests for relief (be they in pleadings or motions).  Generally, attorney fees can be recovered only in narrow instances, such as when there is a contractual or statutory right to them or if they are available under the Court Rules.  While an award of attorney fees is often sought, it is much more rarely granted by the court.  But what if it is?  How does a party go about supporting their claim for attorney fees?
The Court of Appeals’ recent and soon-to-be-published opinion in Cassidy v. Cassidy (Case No.328004, 328024, January 1, 2017) presents an excellent analysis of an attorney fee award and demonstrates what a party must do to recover the attorney fees they seek.
In Cassidy, the plaintiff wife sued her husband for divorce, alleging he and his girlfriend had conspired to deprive the wife of her marital property.  In particular, the husband had given his girlfriend hundreds of thousands of dollars from the marital coffers to build a house.  The case was contentious (as divorce matters often are) and the husband engaged in a host of actions that needlessly increased the costs of the case (avoiding service, failing to answer discovery requiring motions to compel, hiding information requiring an order to seize computers to obtain the information, filing frivolous motions, filing frivolous responses to motions, interfering with subpoenas, etc.).  The trial court eventually found in favor of the wife and as part of its judgment of divorce awarded her $150,000 in attorney fees.  The trial court did so without conducting a hearing on the fees.  The husband appealed claiming he was entitled to an evidentiary hearing on the reasonableness of the attorney fees and the trial court erred in not conducting such a hearing.  The Court of Appeals affirmed the trial court’s attorney fee award in an opinion that serves as a roadmap of how a party substantiates its claim for attorney fees.
The Court of Appeals began its analysis identifying the various statutes and court rules under which attorney fees could be awarded in the case.  These included MCL 552.12(1)(trial court may require a party to “pay any sums necessary to enable the adverse party to carry on or defend the action”) and MCR 3.206(C)(court can award attorney fees where “(a) the party is unable to bear the expense of the action, and [ ] the other party is able to pay; or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to do so”).  The Court of Appeals found the trial court properly awarded attorney fees to the wife based on its findings that (a) the wife was financially unable to pay her own attorney fees, and (b) the husband’s vindictive actions had increased her attorney fees and costs dramatically.
The Court of Appeals rejected the husband’s argument he was entitled to an evidentiary hearing on the reasonableness of the attorney fees.  This was due to his failure to contest the reasonableness of the fees in the trial court (the Court addressed the issue despite this waiver) and the substantial evidence the wife presented to the trial court in support of the fee request, which made a hearing unnecessary.  This evidence included “affidavits and copious billings”.
With regard to the reasonableness of the attorney fees, the Court of Appeals first listed the factors courts should consider when addressing the reasonableness of attorney fees:

(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. [Citing Smith v. Khouri, 481 Mich 519, 527 (2008).]

The Court of Appeals also considered the eight factors listed in MRPC 1.5(a), which are similar.  Once these factors were considered, the Court of Appeals found the trial court was required to do three things:  (1) determine the “reasonable hourly rate” customarily charged in the locale; (2) multiply that rate by the “reasonable number of hours expended in the case” and (3) review the various factors to determine whether they justified an upward or downward adjustment.
As above, the trial court found the wife had submitted documentation included both “affidavits and copious billings”.  These established the wife’s attorney’s substantial professional qualifications (36 years in practice, State Bar memberships and chair position, being named a “Top Lawyer” and “Who’s Who” by various publications, being an equity and managing partner in a national law firm), personal qualifications (being president of various community organizations and a Board of Education president), and the reduced hourly rate he sought to be compensated at ($250 versus his normal $350 rate).
On the issue of the “reasonable hourly rate”, the trial court relied on the State Bar’s 2014 scientific survey on the economics of the practice of law, which it noted contains “a multi-layered analysis of attorney fees charged by lawyers throughout the state in various areas of practice.”  This survey is available online at the State Bar’s website and is an excellent resource on the issue of customary fees.  The trial court found this survey constituted sufficient “empirical data” to establish the customary fee in the area for practitioners and the reasonableness of the attorney’s hourly rate.  The Court of Appeals found the trial court’s reliance on this survey to be proper and, coupled with the other evidence, constituted a “sufficient record” on the issue of the reasonableness of the claimed fees.[1]  Given this substantial support for the fee sought, the Court of Appeals affirmed the trial court’s award of attorney fees to the wife.
The Cassidy case presents a one-stop-shop of applicable law and relevant analysis on the issue of attorney fee awards and how to support them.  The next time you seek attorney fees, a review of the Cassidy case will prove helpful, as will citation to it and following its roadmap for success.
[1] Likewise, federal courts have also held that the Economics of Law Practice Survey is an appropriate guide for establishing the reasonableness of an award of attorney fees.  Lamar Advertising Co. v. Charter Twp. of Van Buren, 178 Fed. Appx. 498, 501-02 (6th Cir. 2006)