The mechanisms for awarding attorneys’ fees, including contingency enhancements, adopted in Rendine v. Pantzer, 141 N.J. 292 (1995) remain in full force and effect as the governing principles for awards made pursuant to New Jersey fee-shifting statutes.

Statutory fee-shifting provisions address the problem of unequal access to the courts; provide the individuals, whose rights are being protected by the statutes, with the resources to enforce those rights in court; operate to encourage adequate representation which is essential to ensuring that those laws will be enforced; and promote respect for the underlying law.

Pursuant to Rendine, calculating an award of attorneys’ fees pursuant to state statutory fee-shifting provisions begins with determining the lodestar. The lodestar is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.

Rendine, and its companion case Szczepanski v. Newcomb Medical Ctr., 141 N.J. 346 (1995), included specific guidance that informs both aspects of the lodestar equation. In addition, under Rendine, after the lodestar has been established, the trial court may increase the fee to reflect the risk of nonpayment in all cases in which the attorney’s compensation entirely or substantially is contingent on a successful outcome. The Court’s authorization of contingency enhancements arose from its conclusion that a fee award cannot be “reasonable” unless the lodestar is adjusted to reflect the actual risk that the attorney would not receive payment if the suit did not succeed.

See related Blog Post: Contingency Fee Enhancements in NJ, posted by Matthew Stoloff, Esq.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Calculating an award of attorneys’ fees pursuant to state statutory fee-shifting provisions begins with determining the lodestar; the lodestar is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate originally appeared on NJ Family Issues on January 31, 2012.

“To successfully argue that your hourly rate is reasonable, certifications of hourly rates from attorneys in similarly sized firms in nearby jurisdictions and practice in particular legal areas will probably be far more persuasive to the Court than anything else.” — Source: Did Heller’s Attorneys Demand Reasonable Hourly Rates?, published in Matthew Stoloff’s Blog.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Are your hourly rates reasonable? originally appeared on NJ Family Issues on January 26, 2012.

Rule 5:3-5(c) permits the Family court to award attorney fees in a matrimonial action, within its discretion, based on a number of factors, including: the financial circumstances of the parties, the ability of the parties to pay their own fees or contribute to the fees of the other party, the reasonableness of the positions advanced, the extent of the fees incurred by both parties, and the results obtained. See also Williams v. Williams, 59 N.J. 229, 233 (1971) (stating that when awarding counsel fees, “courts focus on several factors, including the wife’s need, the husband’s financial ability to pay and the wife’s good faith in instituting or defending the action”); Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000) (holding that where a Rendine [Rendine v. Pantzer, 141 N.J. 292 (l995)] lodestar “analytical framework is followed and the judge makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion”).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

The Family court may award attorney fees in a matrimonial action, within its discretion, based on a number of factors, including: the financial circumstances of the parties, the ability of the parties to pay their own fees or contribute to the fees of the other party, the reasonableness of the positions advanced, the extent of the fees incurred by both parties, and the results obtained originally appeared on NJ Family Issues on January 17, 2012.

In awarding counsel fees, courts consider the bad faith of a party. N.J.S.A. 2A:34-23. Bad faith can be established by the “intentional misrepresentation of facts or law” to avoid or unfairly limit equitable distribution or alimony. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992). See Brown v. Brown, 348 N.J. Super. 466, 474 (App. Div.) (defendant acted in bad faith in misrepresenting his income and assets subject to equitable distribution), certif. denied, 174 N.J. 193 (2002).

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Bad faith can be established by the intentional misrepresentation of facts or law to avoid or unfairly limit equitable distribution or alimony originally appeared on NJ Family Issues on January 8, 2012.

Generally, only a duly admitted attorney of New Jersey is entitled to recover compensation for legal services rendered. Appell v. Reiner, 43 N.J. 313, 316 (1964).

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Generally, only a duly admitted attorney of New Jersey is entitled to recover compensation for legal services rendered originally appeared on NJ Family Issues on January 8, 2012.

Rule 1:20A-6 provides:

No lawsuit to recover a fee may be filed until the expiration of the 30 day period herein giving Pre-Action Notice to a client . . . . The attorney’s complaint shall allege the giving of the notice required by this rule or it shall be dismissed.

The court cannot permit an attorney to avoid compliance with the rule because to do so would render the rule nugatory. See Nieschmidt Law Office v. Leamann, 399 N.J. Super. 125 (App. Div. 2008).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Lawsuit to recover a legal fee originally appeared on NJ Family Issues on January 8, 2012.

The rule for allocating fees among law firms who have provided services to the client pursuant to contingent fee retainer agreements was articulated in La Mantia v. Durst, 234 N.J. Super. 534, 537-44 (App. Div.), certif. denied, 118 N.J. 181 (1989), in which we held that the principles of quantum meruit govern. The considerations that inform this analysis include: the quantity and quality of time expended on the case by each firm, the viability of the claim when the file was transferred, and the amount of the recovery. Id. at 540-41.

“Appellate review of a trial court’s attorney fee determination is deferential. The appellate court will only disturb the trial court’s determination on a showing of ‘clear abuse of discretion’ based on the record presented on the fee application.” In re Estate of F.W., 398 N.J. Super. 344, 355 (App. Div.) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)), certif. denied, 196 N.J. 347 (2008). A “clear abuse of discretion” must be demonstrated. F.W., supra, 398 N.J. Super. at 355 (quoting Rendine, supra, 141 N.J. at 317).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Quantum meruit governs the allocation of fees among law firms who have provided services to the client pursuant to contingent fee retainer agreements originally appeared on NJ Family Issues on January 8, 2012.

“[A] lawyer’s bill for services must be reasonable both as to the hourly rate and as to the services performed.” Gruhin & Gruhin, P.A. v. Brown, 338 N.J. Super. 276, 280 (App. Div. 2001); see also RPC 1.5(a) (stating, “[a] lawyer’s fee shall be reasonable” and setting forth the factors to be considered in determining the reasonableness of a fee). A court must determine the reasonableness of the rate charged by counsel by comparing it to the rate for similar services charged by lawyers of reasonably comparable skill, experience, and reputation in the community. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 22 (2004); (citing Rendine v. Pantzer, 141 N.J. 292, 335 (1995)). A court must also determine whether the time expended by counsel is equivalent to the time “‘competent counsel reasonably would have expended to achieve a comparable result.’” Ibid. (quoting Rendine, supra, 141 N.J. at 336).

Pursuant to Rule 1:7-4, a trial court must “find the facts and state its conclusions . . . on every motion decided by a written order that is appealable as of right.” R. 1:7-4(a). As our Supreme Court has stated: “Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court. Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.” Curtis v. Finneran, 83 N.J. 563, 569 (1980). Consequently, a trial court errs when it fails to explain its reasons for a fee awarded in a final judgment. See Furst, supra, 182 N.J. at 21 (“[A] trial court must analyze the Rendine factors in determining an award of reasonable counsel fees and then must state its reasons on the record for awarding a particular fee.”).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A trial court errs when it fails to explain its reasons for a fee awarded in a final judgment originally appeared on NJ Family Issues on December 21, 2011.

Where a judge follows the law and “makes appropriate findings of fact, [an attorney's] fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion.” Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000).

Where the appellate court is unable to detect an express rationale for an attorneys’ fees award, the appellate court must remand for a proper explanation of reasons. See Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003).

Rule 5:3-5(c) lists the following factors for the court’s consideration in its award of attorneys’ fees:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

In Mani v. Mani, 183 N.J. 70, 93 (2005), the Supreme Court described the required considerations in awarding counsel fees pursuant to Rule 5:3-5(c)(1) and Rule 4:42-9(b):

[T]he court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.

[Id. at 94-95.]

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

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Where the appellate court is unable to detect an express rationale for an attorneys’ fees award, the appellate court must remand for a proper explanation of reasons originally appeared on NJ Family Issues on December 11, 2011.

Fee arbitration committees have jurisdiction to arbitrate fee disputes between clients and attorneys. R. 1:20A-2(a). The decision of the fee arbitration committee is final and binding on the parties and the Disciplinary Review Board (DRB or Board), alone, has appellate jurisdiction in these matters. R. 1:20A-3(c); see also Linker v. Co. Car Corp., 281 N.J. Super. 579, 587 (App. Div. 1995).

Rule 1:20A-3(d) sets forth the procedure for appealing the determination of the fee arbitration committee to the DRB:

The party taking an appeal shall file a notice of appeal in the form prescribed by the Board within twenty-one days after the parties’ receipt of the Fee Committee’s written arbitration determination. The notice of appeal shall be filed with the Board and shall include a statement of the ground for appeal and an affidavit or certification stating the factual basis therefor.

The grounds for appealing fee arbitration determinations are extremely narrow. Under Rule 1:20A-3(c), no appeal from the determination of a fee committee may be taken by the client or the attorney to the DRB except where facts are alleged that:

(1) any member of the Fee Committee hearing the fee dispute failed to be disqualified in accordance with the standards set forth in R. 1:12-1; or
(2) the Fee Committee failed substantially to comply with the procedural requirements of R. 1:20A, or there was substantial procedural unfairness that led to an unjust result; or
(3) there was actual fraud on the part of any member of the Fee Committee; or
(4) there was a palpable mistake of law by the fee committee which on its face was gross, unmistakable, or in manifest disregard of the applicable law, which mistake has led to an unjust result.

In this regard, the DRB “shall dismiss the appeal on notice to the parties if it determines that the notice of appeal fails to state a ground for appeal specified in paragraph (c) of [Rule 1:20A-3] or that the affidavit or certification fails to state a factual basis for such ground.” R. 1:20A-3(d).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Fee disputes between clients and attorneys originally appeared on NJ Family Issues on December 7, 2011.