Attorneys Fees

The topic title ends with a question mark because although a statute may allow you to request fees, you may not get them. The use of the word “award” - meaning an unexpected honor or recognition of an achievement, is probably appropriate too.

Scores of Maryland statutes include a provision for an award of attorney fees, but my personal experience has been that the judges either refuse to award fees or reduce them significantly. Contrarily, before the federal bench, I have received 100% of a statutory permitted attorney fee. At this meeting I will distinguish my experience with both forums.

Family Law article 12-103 provides that the court can award costs and counsel fees in certain domestic matters. The court shall consider the “financial status of each party, the needs of each party, and whether there was substantial justification for bringing, maintaining or defending the proceeding.” At a fee hearing on my petition for appellate attorney fees, the judge awarded me no fees or costs, despite a COSA mandate citing “substantial justification,” findings by the judge that my fees were reasonable and the existence of a significant discrepancy in incomes.

The ex-spouse’s claim that my client was not working up to her potential income and that she may have purposefully dissipated some assets had caught the ear of the judge and was cited in his oral opinion for refusing payment of any of my $12K in “reasonable” fees or $3K in costs. As I pondered my situation, I grieved briefly for the empty spot in my wallet that would remain empty, but also for the many low income persons who would never receive their day in court because of the reluctance of an attorney to become involved in such matters without a substantial retainer.

Contrary to my State court experience, I received a significant attorney fee award from a US District Judge in an ERISA case, Hardester v. Lincoln National Insurance. If your litigation takes you into federal court, and if you are allowed to petition for fees and costs, do not overlook Rule 109 of the Local Rules of the United States District Court for the District of Maryland. It mandates specific time and format requirements for costs and fee requests.

The local federal rule requires that you file your Bill of Costs within twenty days of the mandate. If you miss the twenty day filing period, it is deemed a waiver of costs which can be significant in federal cases. Attorney fees must be filed within fourteen days of the entry of judgment or mandate and must include a detailed description of work performed broken down by hours or fractions expended on each task, the attorney’s customary fee for such like work, the customary fee for like work prevailing in the attorney’s community, a listing of any expenditures for which reimbursement is sought, and any additional factors that the attorney wishes to bring to the Court’s attention.

The lesson of the day can easily be summarized by any rookie attorney -- get your retainer up front, then go to work. I am also reminded of the sign that some attorneys hang in their office, “How much justice can you afford?” I always thought such signs were in poor taste, but the collection of a fee is essential to the financial existence of a private practitioner.

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