Friday, September 5, 2014

Such A Dirty Word

Yesterday, I attended a continuing education program on the latest rule changes and new court decisions.  A whole group of new rules have taken effect regarding the award of attorney's fees.  Before I talk about the new rules, let's talk fees.  Many clients come into my office expecting that their spouse will have to pay all or part of their legal fees.  With relatively few exceptions, that doesn't happen.   Maryland runs on the American plan, which means everybody pays their own way.  That doesn't mean people in the Trenches are never ordered to pay the other side's attorney's fees.  There are a couple instances where fees may be awarded.  First, if one side has no or almost no money or assets to fund their case and the other side has enough money to fund their case and that of the other.  That doesn't happen all that often.  Second, if someone files a case or a pleading in court that has no basis in law or fact, they can be ordered to pay the other side's fees.  Third, if there is an agreement between the parties that permits the court to award fee.  Fourth, if there is a specific statute that says the court can order fees, whether you win or lose.  Here in the Trenches, that only applies to alimony, child support and some discovery violations.

As you can see, it's not easy getting the court to order the other side to pay your client's attorney's fees.  The new rules just made it that much harder.  Along with requiring a detailed listing of the fees, the work performed, and the attorney's customary fee, the new rules require a listing of the customary fee charged for the same services in the county and the customary fee prevailing in the attorney's legal community.  Those last two requirements add a whole other layer to a process that is already time consuming and difficult.  Why?  Because now not only does the person requesting fees have to set out in detail what their attorney charged them, but they also have to figure out in some way what other lawyers in their community would charge for the same services, as well as what the lawyers their lawyer considers their peers charged. How easy do you think it will be to get other attorneys to share that information? Not so easy.  That's a lot of extra work and cost for a client who already has no money for an attorney. I guess unless you're positive you'll be awarded fees, you probably won't want to spend the extra money to try.  Knowing how difficult it is to be awarded fees, the new rules ensure even fewer people will try.  When we say Maryland follows the American plan on attorney's fees, the new rules show we really mean it.   Here in the Trenches.

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