Attorney’s Fees
This chapter addresses the issues regarding attorney’s fees that are commonly encountered by the family law practitioner. Considerations specific to particular proceedings are discussed in other chapters.
§ 20.1Setting the Fee—Generally
Comment 2 to rule 1.04 of the Texas Disciplinary Rules of Professional Conduct provides:
When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. If, however, the basis or rate of fee being charged to a regularly represented client differs from the understanding that has evolved, the lawyer should so advise the client. In a new client-lawyer relationship, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, in order to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding, and when the lawyer has not regularly represented the client it is preferable for the basis or rate of the fee to be communicated to the client in writing. Furnishing the client with a simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if the basis or rate of the fee is set forth. In the case of a contingent fee, a written agreement is mandatory.
Tex. Disciplinary Rules Prof’l Conduct R. 1.04 cmt. 2, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).
§ 20.2Factors to Consider in Setting Fee
Rule 1.04(a) prohibits arranging for, charging, or collecting an illegal or unconscionable fee. Tex. Disciplinary Rules Prof’l Conduct R. 1.04(a). Some factors that may be considered in determining the reasonableness of a fee, set out in rule 1.04(b), are—
1.the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2.the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3.the fee customarily charged in the locality for similar legal services;
4.the amount involved and the results obtained;
5.the time limitations imposed by the client or by the circumstances;
6.the nature and length of the professional relationship with the client;
7.the experience, reputation, and ability of the lawyer or lawyers performing the services; and
8.whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Tex. Disciplinary Rules Prof’l Conduct R. 1.04(b). These factors are not exclusive.
An attorney in good conscience should not charge or collect more than a reasonable fee. However, a standard of “reasonableness” is too vague to be an appropriate standard in a disciplinary action. For disciplinary purposes only, the attorney is subject to discipline for an illegal or unconscionable fee. Tex. Disciplinary Rules Prof’l Conduct R. 1.04 cmt. 1.
A fee is unconscionable if a competent attorney could not form a reasonable belief that the fee is reasonable. Tex. Disciplinary Rules Prof’l Conduct R. 1.04(a).
Several of the factors listed above have been cited by appellate courts to support the reasonableness of a jury award of attorney’s fees in matters involving substantial amounts of property. See Morgan v. Morgan, 657 S.W.2d 484, 491–92 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d); Braswell v. Braswell, 476 S.W.2d 444, 446 (Tex. App.—Waco 1972, writ dism’d).
§ 20.3Written Contract for Fees
If the attorney has not regularly represented the client, the basis or rate of the fee must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. Tex. Disciplinary Rules Prof’l Conduct R. 1.04(c). This practice will not only prevent later misunderstanding but will also promote good attorney-client relations. Many persons who desire legal services have had little or no experience with attorney’s fees, and therefore the attorney should explain fully the reasons for the particular fee arrangement.
Because of the confidential nature of the attorney-client relationship, courts carefully scrutinize all contracts for attorney compensation. “There is a presumption of unfairness or invalidity attaching to the contract, and the burden of showing its fairness and reasonableness is on the attorney.” Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964) (wife deeded real property to lawyer under contingent fee contract for lawyer’s representation of wife in divorce; court set aside deed because value of property was approximately ten times that which was considered reasonable fee for services provided in case); see also Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508–09 (Tex. 1980).
Lawyers must distinguish between advance payment retainer fees (advance payments for services to be performed) and true retainer fees (payments to compensate a lawyer for his commitment to provide certain services and to forgo other employment opportunities).
§ 20.4:1Refundable Retainers (Deposits)
A refundable retainer is an advance payment or deposit paid by the client to the lawyer for costs, expenses, and legal fees that will be incurred but are not yet earned. A refundable retainer, until it is earned or expenses incurred, belongs to the client and must be placed in the lawyer’s trust account. As fees are earned, whether the lawyer uses an hourly billing method or some other basis for establishing the fee, the client is billed and payment is made out of the lawyer’s trust account, under the provisions of the written fee contract between the client and the lawyer. The lawyer enjoys the security of the retainer for the payment of fees and costs.
The retention and handling of client funds, in the form of a refundable retainer, must conform to the requirements imposed by rule 1.14 of the Texas Disciplinary Rules of Professional Conduct. Virtually every issue of the Texas Bar Journal reports disciplinary action taken against one or more lawyers for violating some portion of rule 1.14 by either failing to maintain an identifiable bank account for client trust funds, failing to account for client funds, or failing to return client trust funds to the client. Segregation and safekeeping of client funds, as required by rule 1.14, is discussed in section 1.15 in this manual.
§ 20.4:2Nonrefundable Retainers
Nonrefundable retainers, though not inherently unethical, pose many potential problems and must be used with caution. A fee is not earned simply because it is designated as “nonrefundable.” A “true retainer” is a payment to compensate the lawyer for his commitment to provide certain services and forgo other employment opportunities. See Tex. Comm. on Prof’l Ethics, Op. 431 (1986).
A true nonrefundable retainer belongs entirely to the lawyer at the time it is received because the fee is earned at the time of receipt. The fee is earned on receipt because payment commits the lawyer to the client’s case. In effect, a nonrefundable retainer is an engagement fee that indicates the lawyer’s willingness to represent the client and guarantees the lawyer’s availability to take on the case for the client. However, a nonrefundable retainer is subject to rule 1.04(a) of the Texas Disciplinary Rules of Professional Conduct, which states that a lawyer shall not enter into an agreement for or charge or collect an illegal or unconscionable fee. See Tex. Disciplinary Rules Prof’l Conduct R. 1.04(a).
A legal fee relating to future services is a true nonrefundable retainer when received only if the fee in its entirety is a reasonable fee to secure the availability of the lawyer’s services and compensate the lawyer for the preclusion of other employment. An agreement with a client that a fee is nonrefundable on receipt, whether or not designated nonrefundable, would violate the rules of disciplinary conduct if the fee includes payment for the provision of future legal services rather than being solely for the availability of future services. Such an arrangement would not be reasonable under rule 1.04(a) and (b), and placing the entire payment in the lawyer’s operating account would violate rule 1.14 of the Texas Disciplinary Rules of Professional Conduct. See Tex. Comm. on Prof’l Ethics, Op. 611 (2011); see also Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.—Austin 2007, no pet.) (lawyer’s deposit in operating account of “nonrefundable retainer” against which hourly fee would be billed constituted professional misconduct).
Only the payment meeting the requirements for a true nonrefundable retainer may be deposited in the lawyer’s operating account; any advance payment amount must be deposited in a trust or escrow account from which amounts may be transferred to the operating account only when earned. See Tex. Comm. on Prof’l Ethics, Op. 611 (2011); Tex. Disciplinary Rules Prof’l Conduct R. 1.14 cmt. 2. A client paying for both a true nonrefundable retainer and an advance payment should pay the lawyer with two separate checks. It is critically important to note that if a client pays both amounts with one check, the entire check must be deposited into the lawyer’s trust account according to the provisions of rule 1.14. Thereafter, the lawyer may transfer the funds representing the nonrefundable retainer into the lawyer’s general operating account in accordance with rule 1.14.
Many lawyers include an “evergreen” refundable retainer provision in their employment contracts. When credits against the evergreen retainer for the lawyer’s fees deplete it below a designated dollar amount, the client is required to replenish it. For example, the employment contract could require the client to pay the lawyer an initial refundable retainer of $5,000, which is placed in the lawyer’s trust account; as the lawyer bills for legal services and reduces the refundable retainer by monthly billings to an amount below $2,000, the client would be required to replenish the lawyer’s trust account—to keep it “green”—by paying an amount into the lawyer’s trust account to replenish the retainer to $5,000 or by paying a designated dollar amount. A properly used evergreen retainer allows a lawyer to enjoy the security of having funds on hand with which to pay attorney’s fees as they are earned and billed.
In civil cases, a lawyer may contract with a client for a reasonable contingent fee. Tex. Disciplinary Rules Prof’l Conduct R. 1.04(b)(8), (d), (e). The rules, however, discourage contingent fees in family law cases:
Contingent and percentage fees in family law matters may tend to promote divorce and may be inconsistent with a lawyer’s obligation to encourage reconciliation. Such fee arrangements also may tend to create a conflict of interest between lawyer and client regarding the appraisal of assets obtained for client. See also Rule 1.08(h). In certain family law matters, such as child custody and adoption, no res is created to fund a fee. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations cases are rarely justified.
Tex. Disciplinary Rules Prof’l Conduct R. 1.04 cmt. 9.
Although contingent fees are discouraged in family law matters, they may be appropriate in tort causes of action arising in domestic relations circumstances and in some other types of family law cases.
One court has found that a contingent fee was enforceable in connection with determining the validity of a common-law marriage, stating:
While rarely justified in divorce actions, contingent fee contracts may be appropriate in a situation such as this. If the marriage is not established, the plaintiff may recover nothing, a situation differing sharply from a divorce suit involving a ceremonial marriage in which each party will obtain a recovery of some sort.
Ballesteros v. Jones, 985 S.W.2d 485, 497 (Tex. App.—San Antonio 1999, pet. denied).
A lawyer may charge a contingent fee for the collection of a child support arrearage, but the fee must be reasonable and must comply with rule 1.04 of the Texas Disciplinary Rules of Professional Conduct. Before execution of the contingent fee contract, the lawyer must fully disclose all options to the client, including the option for the client to use the Texas Attorney General’s Office to handle the child support arrearage case free of charge to the client. Other options should be discussed, as well as the pros and cons of the options. All dealings with the arrearages that are collected should comply with rule 1.14 of the Texas Disciplinary Rules of Professional Conduct involving the safekeeping of property and keeping client funds separate from attorney’s fees. See Tex. Comm. on Prof’l Ethics, Op. 485 (1994).
Formal Requirements: Any contingent fee contract must be in writing; state the method by which the fee is to be determined, including any percentage differentiation in the event of settlement, trial, or appeal; and provide for all expenses. On conclusion of the matter, the attorney must give the client a written closing statement stating the outcome of the representation and, if there is a recovery, showing the remittance to the client and describing how it was determined. Tex. Disciplinary Rules Prof’l Conduct R. 1.04(d). A contingent fee contract for legal services must be in writing and signed by the attorney and the client. Tex. Gov’t Code § 82.065(a). A lawyer’s attempt to enforce an arbitration agreement contained in a contingent fee contract failed because the lawyer failed to sign the contract. In re Godt, 28 S.W.3d 732, 738 (Tex. App.—Corpus Christi–Edinburg 2000, orig. proceeding).
Recovery on Contract: A lawyer under a contingent fee contract terminated by the client may recover on the contract in Texas. The usual rules of contract law apply. Any of three remedies may be pursued: (1) treating the contract as rescinded and recovering on a quantum meruit theory to the extent justified by performance; (2) keeping the contract alive for the benefit of both parties, being always ready and able to perform; or (3) treating the repudiation as ending the contract for all purposes of performance and suing for the profits that performance would have justified. Howell v. Kelly, 534 S.W.2d 737, 739–40 (Tex. App.—Houston [1st Dist.] 1976, no writ). But cf. Rocha v. Ahmad, 676 S.W.2d 149, 156 (Tex. App.—San Antonio 1984, writ dism’d) (lawyer discharged for good cause may recover fees earned before discharge under quantum meruit but may not recover under contingent fee contract). See also Findlay v. Cave, 611 S.W.2d 57 (Tex. 1981) (attorney’s fees for prosecuting suit on contingent fee contract allowed although contract found not fair and reasonable and recovery based on quantum meruit; circumstances did not show sufficient level of unreasonableness or bad faith to warrant finding excessive demand as matter of law).
Fee splitting is the practice of sharing fees with professional colleagues in return for being sent referrals or being associated with the colleague on a legal matter.
Fee splitting between lawyers who are not in the same firm is permitted only if the following conditions are met:
1.The division is in proportion to the professional services performed by each attorney or made between attorneys who assume joint responsibility for the representation.
2.The client consents in writing to the terms of the arrangement before the time of the association or referral proposed. The consent must include (a) the identity of all lawyers or law firms who will participate in the fee-splitting agreement; (b) whether fees will be divided based on the proportion of services performed or by attorneys agreeing to assume joint responsibility for the representation; and (c) the share of the fee that each attorney or firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made.
3.The aggregate fee does not violate rule 1.04(a).
Tex. Disciplinary Rules Prof’l Conduct R. 1.04(f).
As always, there is an overarching requirement that the aggregate fee is not illegal or unconscionable. See Tex. Disciplinary Rules Prof’l Conduct R. 1.04(a).
Any agreement that allows an attorney or firm to associate other counsel in representing a person, or to refer the person to other counsel for representation, that results in such an association with or referral to a different firm or an attorney in a different firm must be confirmed by an arrangement conforming to rule 1.04(f). Consent by a client or prospective client without knowledge of the information described above about the terms of the arrangement does not constitute a confirmation. No attorney may collect or seek to collect fees or expenses in connection with any such agreement that is not confirmed in that way except for the reasonable value of legal services provided to the person and the reasonable and necessary expenses actually incurred on behalf of the person. Tex. Disciplinary Rules Prof’l Conduct R. 1.04(g).
[Sections 20.7 through 20.10 are reserved for expansion.]
II. Proving Up Attorney’s Fees
Attorney’s fees must be pleaded in order to be awarded. Because a trial court’s judgment must conform to the pleadings, a party seeking attorney’s fees must plead for them, specifying the legal standard under which they are sought. See Intercontinental Group Partnership v. KB Home Lone Star L.P., 295 S.W.3d 650, 659 (Tex. 2009) (party waived right to recover attorney’s fees under contractual provision by pleading for attorney’s fees only under statutory provision); Peterson Group, Inc. v. PLTQ Lotus Group, L.P., 417 S.W.3d 46, 61 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (party could not recover attorney’s fees under contractual provision when it pleaded for attorney’s fees only under statutory provision). However, a general request for attorney’s fees in the prayer of a pleading is sufficient to authorize the award of discretionary fees. See In re Marriage of Jobe, No. 12-20-00105-CV, 2021 WL 4616387, at *5 (Tex. App.—Tyler Oct. 6, 2021, no pet.) (mem. op.) (request for attorney’s fees like that contained in form 3-1 of this manual held sufficient to authorize award of attorney’s fees). If a person requesting attorney’s fees pleads for a specific amount, he will be limited to that amount. Carson v. Carson, 528 S.W.2d 308, 309 (Tex. App.—Waco 1975, no writ).
§ 20.12Authorization to Recover Attorney’s Fees
Attorney’s fees paid to prosecute or defend a lawsuit cannot be recovered absent a statute or contract that allows for their recovery. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009); In re Marriage of Pyrtle, 433 S.W.3d 152, 160 (Tex. App.—Dallas 2014, pet. denied); see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006).
Attorney’s fees are specifically authorized by statute in many circumstances encountered by the family law practitioner. In a suit for dissolution of marriage or in a suit affecting the parent-child relationship, the court may award reasonable attorney’s fees and expenses. Tex. Fam. Code §§ 6.708(c), 106.002(a). During the pendency of such a suit, the court may render temporary orders for the payment of reasonable attorney’s fees and expenses. Tex. Fam. Code §§ 6.502(a)(4), 105.001(a)(5). The court may also require payment of reasonable and necessary attorney’s fees and expenses during the pendency of an appeal of such a suit. Tex. Fam. Code §§ 6.709(a)(2), 109.001(a)(5). In a SAPCR proceeding, attorney’s fees under chapter 106 may not be assessed against a nonparty to the proceeding. In re Z.O.M., 613 S.W.3d 638, 643 (Tex. App.—San Antonio 2020, no pet.).
For a more comprehensive list of statutes allowing or related to the recovery of attorney’s fees, see section 20.41 below.
§ 20.13Reasonable and Necessary
As a general rule, the party seeking to recover attorney’s fees carries the burden of proof, and reasonableness of the fee is a fact question. See, e.g., Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010, pet. denied).
When a claimant wishes to obtain attorney’s fees from the opposing party, the claimant must prove that the requested fees are both reasonable and necessary. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484 (Tex. 2019).
The idea behind awarding attorney’s fees in fee-shifting situations is to compensate the prevailing party generally for its reasonable losses resulting from the litigation process. To secure an award of attorney’s fees from an opponent, the prevailing party must prove that (1) recovery of attorney’s fees is legally authorized and (2) the requested attorney’s fees are reasonable and necessary for the legal representation, so that such an award will compensate the prevailing party generally for its losses resulting from the litigation process. Rohrmoos Venture, 578 S.W.3d at 487.
Because such fee awards are compensatory in nature, fee-shifting is not a mechanism to improve a lawyer’s economic situation, and only fees that are reasonable and necessary for the legal representation will be shifted to the nonprevailing party. The fee award may not necessarily be the amount contracted for between the prevailing party and its lawyer, because a client’s agreement to a certain fee arrangement or obligation to pay a particular amount does not necessarily establish that fee as reasonable and necessary. Rohrmoos Venture, 578 S.W.3d at 487–88.
A party must be represented by a lawyer to secure an award of attorney’s fees. A law firm can be awarded fees for representation by its own lawyer. Rohrmoos Venture, 578 S.W.3d at 488.
Reasonableness of attorney’s fees must be supported by expert testimony. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 830 (Tex. App.—Dallas 2014, no pet.); Twin City Fire Insurance Co. v. Vega-Garcia, 223 S.W.3d 762, 770–71 (Tex. App.—Dallas 2007, pet. denied). This requirement may be satisfied by sworn testimony from an attorney designated as an expert before testifying. See Woodhaven Partners, 422 S.W.3d at 830. Testimony from a party’s lawyer about that party’s attorney’s fees that “is not contradicted by any other witness and is clear, positive, direct, and free from contradiction” is taken as true as a matter of law. In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.—Dallas 2009, pet. denied).
An affidavit complying with section 18.001 of the Texas Civil Practice and Remedies Code can support an award of attorney’s fees; however, compliance with the statute is cumbersome, and live expert testimony by the attorney is the common practice for proving reasonableness and necessity of attorney’s fees in proceedings under the Family Code. See Tex. Civ. Prac. & Rem. Code § 18.001. Form 20-2 in this manual contains sample prove-up testimony for attorney’s fees.
The lodestar method for proving reasonableness and necessity of attorney’s fees applies to fee-shifting claims under the Texas Family Code. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 496 (Tex. 2019).
There is a presumption that the base lodestar calculation, when supported by sufficient evidence, reflects the reasonable and necessary attorney’s fees that can be shifted to a nonprevailing party. Rohrmoos Venture, 578 S.W.3d at 499.
The determination of what constitutes a reasonable attorney’s fee involves two steps. Rohrmoos Venture, 578 S.W.3d at 501.
The fact finder’s starting point for calculating an attorney’s fee award is determining the reasonable hours worked multiplied by a reasonable hourly rate, and the fee claimant bears the burden of providing sufficient evidence on both counts. Rohrmoos Venture, 578 S.W.3d at 498. Under the lodestar method, sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services. The fact finder then multiplies the number of such hours by the applicable rate, the product of which is the base fee or lodestar. Rohrmoos Venture, 578 S.W.3d at 501.
The fact finder may then adjust the base lodestar up or down (apply a multiplier), if relevant factors indicate an adjustment is necessary to reach a reasonable fee in the case. Thus, the fact finder must first determine a base lodestar figure based on reasonable hours worked multiplied by a reasonable hourly rate. In a jury trial, the jury should be instructed that the base lodestar figure is presumed to represent reasonable and necessary attorney’s fees, but other considerations may justify an enhancement or reduction to the base lodestar; accordingly, the fact finder must then determine whether evidence of those considerations overcomes the presumption and necessitates an adjustment to reach a reasonable fee. Rohrmoos Venture, 578 S.W.3d at 501.
§ 20.16Sufficiency of Evidence
Legally sufficient evidence to establish a reasonable and necessary fee must include a description of the particular services performed, the identity of each person who performed the services, approximately when the services were performed, the reasonable amount of time required to perform the services, and the reasonable hourly rate for each person performing the services. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). Although Texas courts do not require contemporaneous billing records to prove that the requested fees are reasonable and necessary, such billing records are strongly encouraged to prove the reasonableness and necessity of requested fees when those elements are contested. In all but the simplest cases, counsel should introduce detailed billing records into evidence, in addition to counsel’s oral testimony, to support fee requests. See Rohrmoos Venture, 578 S.W.3d at 502.
Thus, when representing family law clients, counsel should document their time by using contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed to ensure that a potential award of attorney’s fees can withstand appellate scrutiny. Jardon v. Pfister, 593 S.W.3d 810, 840–41 (Tex. App.—El Paso 2019, no pet. h.) (evidence showing only total hours billed without detail regarding services performed insufficient to support fee award); Sims v. Sims, 623 S.W.3d 47, 67–68 (Tex. App.—El Paso 2021, no pet.) (evidence insufficient to support attorney’s fee award without billing records or testimony specifying tasks or services performed). But see In re N.R.G., No. 14-20-00408-CV, 2022 WL 2070689, at *10–11 (Tex. App.—Houston [14th Dist.] June 9, 2022, pet. filed) (mem. op.) (in flat-fee case, attorney testimony without billing statements sufficient to support fee award). Additionally, when proving up attorney’s fees, counsel should provide evidence describing in detail the work performed; the identity of each person working on the case; and the number of hours, rate, and amount billed for each such person to establish the reasonableness and necessity of the fees incurred. See, e.g., Bennett v. Zucker, No. 05-19-01445-CV, 2021 WL 3701365, at *11 (Tex. App.—Dallas Aug. 20, 2021, no pet. h.) (mem. op.) (redacted billing records sufficient evidence to support attorney’s fee award); Seitz v. Seitz, 608 S.W.3d 272, 281–82 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (detailed summary of attorney’s fees and expenses incurred sufficient to support fee award).
§ 20.17Relevance of Amount Incurred under Fee Contract
Because fee-shifting awards are to be reasonable and necessary for successfully prosecuting or defending against a claim, reasonableness and necessity do not depend solely on the contractual fee arrangement between the prevailing party and its lawyer. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). An amount incurred or contracted for is not conclusive evidence of reasonableness or necessity; the fee claimant still has the burden to establish reasonableness and necessity. Rohrmoos Venture, 578 S.W.3d at 488.
§ 20.18Arthur Andersen Factors
The lodestar method developed as a “short hand version” of the Arthur Andersen factors and was never intended to be a separate test or method for determining reasonableness and necessity of attorney’s fees. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 496 (Tex. 2019); see Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997).
The base lodestar figure accounts for most of the relevant Arthur Andersen considerations, and an enhancement or reduction of the base lodestar figure cannot be based on a consideration that is subsumed in the first step of the lodestar method. The base lodestar calculation usually includes at least the following considerations from Arthur Andersen: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required to perform the legal service properly; (4) the fee customarily charged in the locality for similar legal services; (5) the amount involved; (6) the experience, reputation, and ability of the lawyer or lawyers performing the services; (7) whether the fee is fixed or contingent on results obtained; (8) the uncertainty of collection before the legal services have been rendered; and (9) results obtained. These Arthur Andersen considerations therefore may not be used to enhance or reduce the base lodestar calculation to the extent that they are already reflected in the reasonable hours worked and reasonable hourly rate. If a fee claimant seeks an enhancement, it must produce specific evidence showing that a higher amount is necessary to achieve a reasonable fee award. Similarly, if a fee opponent seeks a reduction in the fee, that party bears the burden of providing specific evidence to overcome the presumptive reasonableness of a base lodestar figure. Rohrmoos Venture, 578 S.W.3d at 500–501.
In cases under the Family Code, additional factors may be considered when determining reasonableness and necessity of fee awards, including (1) the financial standing of the parties and their disparate earning capacities (Smith v. Smith, 620 S.W.2d 619, 625 (Tex. App.—Dallas 1981, no writ)); (2) disparity of ages, size of separate estates, and nature of the property (Campbell v. Campbell, 625 S.W.2d 41, 43 (Tex. App.—Fort Worth 1981, writ dism’d)); and (3) disparate earning capabilities, different business opportunities, the relative abilities of the parties, the relative financial standing of the parties, their physical conditions, and their probable future needs of support (Mills v. Mills, 559 S.W.2d 687, 689 (Tex. App.—Fort Worth 1977, no writ)).
§ 20.19Attorney’s Fees as Sanctions
A request for interim attorney’s fees or general language consistent with seeking attorney’s fees under the Family Code will not support an award of attorney’s fees as sanctions. Whether exercised pursuant to chapter 10 of the Texas Civil Practice and Remedies Code, rule 13 of the Texas Rules of Civil Procedure, or its inherent power, a trial court’s discretion to impose sanctions is subject to at least one important limitation: sanctions may be imposed only when the person or party against whom the sanction is sought has received notice and had an adequate opportunity to respond. In re Champagne, No. 03-21-00426-CV, 2021 WL 4976719, at *2 (Tex. App.—Austin Oct. 27, 2021, orig. proceeding).
Before a court may exercise its discretion to shift attorney’s fees as a sanction, there must be some evidence of reasonableness, because without such proof a trial court cannot determine that the sanction is no more severe than necessary to fairly compensate the prevailing party. The standard for fee-shifting awards in Rohrmoos Venture applies as well to fee-shifting sanctions. Nath v. Texas Children’s Hospital, 576 S.W.3d 707, 710 (Tex. 2019); see Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). Thus, the lodestar method for proving reasonableness and necessity must be used when requesting attorney’s fees as sanctions, including discovery sanctions.
Paralegal fees are not automatically recoverable as a subset of attorney’s fees. For recovery of paralegal fees in connection with the recovery of attorney’s fees, the paralegal must have performed work that has traditionally been done by an attorney. Gill Savings Ass’n v. International Supply Co., 759 S.W.2d 697, 702 (Tex. App.—Dallas 1988, writ denied). In addition, the evidence must establish—
1.that the paralegal is qualified through education, training, or work experience to perform substantive legal work;
2.that the substantive legal work was performed under the direction and supervision of an attorney;
3.the nature of the legal work performed;
4.that the hourly rate charged for the paralegal was reasonable and necessary; and
5.that the number of hours expended by the paralegal were reasonable and necessary.
“Substantive legal work” includes conducting client interviews and maintaining general contact with the client; locating and interviewing witnesses; conducting investigations and statistical and documentary research; drafting documents, correspondence, and pleadings; summarizing depositions, interrogatories, and testimony; and attending executions of wills, real estate closings, depositions, court or administrative hearings, and trials with an attorney. “Substantive legal work” does not include clerical or administrative work. Texas Paralegal Standards, Paralegal Division of the State Bar of Texas. For more information about the definition of paralegal standards, see State Bar of Texas Paralegal Division, txpd.org.
In Gill Savings, although holding that paralegal fees are includable in an attorney’s fee award under certain conditions, the court found that the testimony and exhibits did not provide any help in determining the qualifications, if any, of the legal assistants, the nature of the work performed, or the hourly rate being charged and held that the evidence was legally insufficient to support the award. Gill Savings, 759 S.W.2d at 705; see also Clary Corp. v. Smith, 949 S.W.2d 452, 469–70 (Tex. App.—Fort Worth 1997, pet. denied) (outlining requirements necessary for recovery and finding evidence legally insufficient for recovery); Moody v. EMC Services, 828 S.W.2d 237, 248 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (outlining requirements necessary for recovery and finding evidence legally insufficient for recovery); Multi-Moto Corp. v. ITT Commercial Finance Corp., 806 S.W.2d 560, 570 (Tex. App.—Dallas 1991, writ denied) (outlining requirements necessary for recovery).
When proving a reasonable attorney’s fee, the lawyer should testify that the hourly rate charged for the paralegal work was reasonable; testifying simply about the total amount of paralegal fees is not sufficient. See Clary Corp., 949 S.W.2d at 470; see also Moody, 828 S.W.2d at 248 (invoices listing total cost for various services performed by paralegal not sufficient to support award of fees). The lawyer should also introduce evidence regarding the paralegal’s qualification to perform substantive legal work and that the paralegal performed substantive legal work under the direction and supervision of an attorney to support an award of paralegal fees. Mahmoud v. Jackson, No. 05-21-00302-CV, 2022 WL 2167683, at *8 (Tex. App.—Dallas June 16, 2022, no pet. h.) (mem. op.).
Generally, a party is required to segregate fees that are recoverable from fees that are not. If discrete legal services advance both a recoverable and an unrecoverable claim, they need not be segregated. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006). In other words, courts concentrate on intertwined legal services rather than intertwined facts.
As examples of legal services that may be necessary whether a claim is filed alone or with others, the supreme court listed “[r]equests for standard disclosures, proof of background facts, depositions of the primary actors, discovery motions and hearings, voir dire of the jury, and a host of other services.” The court stated that “[t]o the extent such services would have been incurred on a recoverable claim alone, they are not disallowed simply because they do double service.” Tony Gullo Motors, 212 S.W.3d at 313.
This standard does not require more precise proof for attorney’s fees than for any other claims or expenses. For example, a lawyer need not keep separate time records when drafting the paragraphs of a petition that includes both recoverable and unrecoverable claims. An opinion that a certain percentage of the drafting time would have been necessary even if there had been no unrecoverable claim would suffice. Tony Gullo Motors, 212 S.W.3d at 314.
Evidence of unsegregated fees for the entire case constitutes some evidence of what the segregated amount should be. If segregation was required but the lawyer failed to introduce evidence of segregation, remand is required. Tony Gullo Motors, 212 S.W.3d at 314.
Whether fees should be segregated is a question of law, and the issue of proper segregation is a mixed question of law and fact. Endsley Electric, Inc. v. Altech, Inc., 378 S.W.3d 15, 28–29 (Tex. App.—Texarkana 2012, no pet.); Penhollow Custom Homes, LLC v. Kim, 320 S.W.3d 366, 374 (Tex. App.—El Paso 2010, no pet.).
Segregation can be done simply by using color-coded highlights. In re Marriage of Mobley, 503 S.W.3d 636, 646 (Tex. App.—Texarkana 2016, pet. denied).
If attorney’s fees are incurred for both enforcement and modification proceedings, the lawyer must segregate the fees attributable to the enforcement action or all the fees are enforceable only as a debt. Specifically, when a party fails to segregate attorney’s fees incurred with an enforcement proceeding (fees that can be enforced through contempt) from attorney’s fees incurred for work performed in connection with a modification proceeding (fees that cannot be enforced through contempt), the award of attorney’s fees is enforceable only as a debt. See In re Braden, 483 S.W.3d 659, 666 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) (per curiam). But see In re L.A.M., No. 07-21-00124-CV, 2022 WL 1657885, at *8 (Tex. App.—Amarillo May 24, 2022, no pet.) (mem. op.) (segregation not required if fees incurred in modification and enforcement proceedings intertwined). An obligee necessarily required to defeat the obligor’s motion to recover overpayments in order to prevail on a claim for unpaid child support need not segregate requested fees. Bruce v. Bruce, No. 03-17-00672-CV, 2018 WL 2653550, at *4 (Tex. App.—Austin June 5, 2018, no pet.) (mem. op.).
Because attorney’s fees are not recoverable in tort actions, attorney’s fees attributable to those causes of action must be segregated. See Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex. App.—San Antonio 1995, no pet.).
Appeals: The requirement of segregation also applies to attorney’s fees on appeal in some circumstances. Because an award of appellate attorney’s fees to the appellee in a suit for dissolution of marriage must be contingent on the appellant’s unsuccessful appeal, an appellee may not recover attorney’s fees for work performed on any issue of the appeal where the appellant was successful but may still recover attorney’s fees for work performed on any issue of the appeal where the appellant was unsuccessful. If a party is entitled to attorney’s fees from the adverse party on one claim but not another, the party claiming attorney’s fees must segregate the recoverable fees from the unrecoverable fees. Robertson v. Robertson, No. 13-16-00309-CV, 2017 WL 6546005, at *5 (Tex. App.—Corpus Christi–Edinburg Dec. 21, 2017, no pet.) (mem. op.).
§ 20.22Proof for Interim Attorney’s Fees
Dissolution of Marriage: While a suit for dissolution of marriage is pending, the court may order payment of reasonable attorney’s fees and expenses after notice and hearing. See Tex. Fam. Code § 6.502(a)(4). The court must hold an evidentiary hearing and allow the opposing spouse an opportunity to participate through cross-examination and presentation of evidence. Post v. Garza, 867 S.W.2d 88, 90 (Tex. App.—Corpus Christi–Edinburg 1993, orig. proceeding). In a hearing for interim attorney’s fees, it is important to prove not only that the fees are reasonable and necessary but also the source from which the fees will be paid. The award of temporary attorney’s fees must be based on the needs of the applicant as weighed against the ability of the other party to pay, but the court may not order a party to pay interim attorney’s fees beyond the party’s present ability to pay. See Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.).
Suit Affecting the Parent-Child Relationship: In a suit affecting the parent-child relationship, the court may make a temporary order for the safety and welfare of the child, including an order for payment of reasonable attorney’s fees and expenses. Tex. Fam. Code § 105.001(a). Notice and a hearing are required. Tex. Fam. Code § 105.001(b). The statute does not authorize a trial court to order payment of temporary attorney’s fees for a purpose other than the safety and welfare of the child. Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding). The party seeking fees must present evidence concerning the safety and welfare of the child, not just evidence that an award of fees is sought to address the disparity in the parties’ relative wealth. In re T.M.F., No. 09-10-00019-CV, 2010 WL 574577 (Tex. App.—Beaumont 2010, orig. proceeding) (per curiam) (mem. op.). The party seeking fees must also present evidence that the funds are necessary at the time of the request, not at trial, to protect the safety and welfare of the child. In re Rogers, 370 S.W.3d 443 (Tex. App.—Austin 2012, orig. proceeding). But see In re H.D.V., No. 05-15-00421, 2016 WL 4492702 (Tex. App.—Dallas Oct. 5, 2016, pet. denied) (mem. op.) (evidence that, without fee award, party seeking fees would be taking money away from children to pay legal fees would support fee award as being necessary for welfare of children).
Estimated Fees: Detailed expert opinion evidence about the services necessary to handle the trial and the reasonable hourly rates for those services are necessary to support an award of estimated fees to be incurred during trial. Evidence regarding which professionals are expected to prepare for and attend trial, their reasonable hourly rates, the tasks to be performed, and how many hours each professional is likely to spend performing those tasks is necessary to support an award of estimated fees to be incurred. See In re D.A.C.-R., No. 05-21-00033-CV, 2022 WL 2302172, at *10 (Tex. App.—Dallas June 27, 2022) (mem. op.), judgm’t set aside, op. not vacated, 2022 WL 2737752 (Tex. App.—Dallas July 14, 2022, pet. filed) (supp. mem. op.) (evidence insufficient to support award of estimated trial fees).
§ 20.23Attorney’s Fees on Appeal
The general rule is that a trial court’s award of attorney’s fees may include appellate attorney’s fees. Hunsucker v. Fustok, 238 S.W.3d 421, 431 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex. App.—Dallas 2003, no pet.)).
Allowing attorney’s fees for an appeal is within the discretion of the trier of fact but is not required. However, if there is uncontroverted testimony by the movant for fees and the opposing party has “the means and opportunity of disproving the testimony and fails to do so, the testimony will be taken as true as a matter of law.” Hunsucker, 238 S.W.3d at 431.
An award of appellate attorney’s fees must be contingent on the appellant’s unsuccessful appeal; to do otherwise would penalize a party for pursuing a meritorious appeal. Robertson v. Robertson, No. 13-16-00309-CV, 2017 WL 6546005, at *5 (Tex. App.—Corpus Christi–Edinburg Dec. 21, 2017, no pet.) (mem. op.). If the fees are not so conditioned, the court may reform the judgment to make them conditional on success, so failure to condition is not the basis for reversible error. See Solomon v. Steitler, 312 S.W.3d 46, 59–60 (Tex. App.—Texarkana 2010, no pet.). In a suit affecting the parent-child relationship, an award of appellate attorney’s fees is not required to be conditioned on a successful appeal. McCain v. McCain, 636 S.W.3d 679, 686 (Tex. App.—Austin 2021, no pet.); In re Mansour, 360 S.W.3d 103, 108–09 (Tex. App.—San Antonio 2020, orig. proceeding). (See the discussion in section 26.8 in this manual.)
Contingent appellate attorney’s fees that have not yet been incurred must be projected based on expert testimony about the services the expert reasonably believes to be necessary to handle the appeal and a reasonable hourly rate for those services, not conclusory testimony. See In re D.A.C.-R., No. 05-21-00033-CV, 2022 WL 2302172, at *10 (Tex. App.—Dallas June 27, 2022) (mem. op.), judgm’t set aside, op. not vacated, 2022 WL 2737752 (Tex. App.—Dallas July 14, 2022, pet. filed) (supp. mem. op.).
Ideally attorney’s fees for the appeal should be requested as part of the final judgment and proved up as part of the general request for attorney’s fees. If trial counsel lacks expertise in appellate law and procedure, consideration should be given to designating an appellate specialist to testify at trial regarding the projected fees to be incurred on appeal. If there is a credible showing of the need for appellate attorney’s fees in the amount requested and of the opposing spouse’s ability to meet that need, the trial court, pending appeal, has authority by temporary orders to require payment of the fees. Halleman v. Halleman, 379 S.W.3d 443, 454 (Tex. App.—Fort Worth 2012, no pet.). Several levels of attorney’s fees should be considered when proving up the appellate attorney’s fees, including evidence that describes each task to be performed, the hourly rate of each person performing the task, and the number of hours estimated to be incurred. See In re D.A.C.-R., 2022 WL 2302172, at *10, judgm’t set aside, op. not vacated, 2022 WL 2737752. These may include:
1.Perfecting the appeal. This step requires the filing of the notice of appeal. At or about the same time, the clerk’s record and the reporter’s record should be requested and reviewed, the docketing statement should be filled out, and the filing fee should be paid.
2.Appellate mediation. Some of the courts of appeal require the parties to attend mediation. Usually this is voluntary, but not always. An objection may be filed, but the court of appeals may still order both parties to attend.
3.Appellant’s brief. The appellant’s brief is due thirty days after both the clerk’s record and the reporter’s record have been filed with the court.
4.Appellee’s brief. The appellee’s brief is due thirty days after the appellant’s brief has been filed.
5.Appellant’s reply brief. A reply brief is optional; it is due twenty days after the appellee’s brief has been filed.
6.Oral argument. The parties must request oral argument, or none will be granted. Even if requested, oral argument is not always granted.
7.Motion for rehearing. A motion for rehearing is optional and is due fifteen days after the court of appeals has issued its opinion. A response is required only if requested by the court.
8.Petition for review. A petition for review is the first step in pursuing the appeal to the Supreme Court of Texas. It is due forty-five days after the court of appeals has issued its opinion or after the last ruling on the motion for rehearing.
9.Response to petition for review. A response to the petition for review is optional unless specifically requested by the supreme court. Usually a response is not requested. If the response is requested, the supreme court generally allows thirty days to file it.
10.Reply to response to petition for review. If a response is filed, a reply to the response to the petition for review is optional but may be necessary. A reply is due fifteen days after the response is filed.
11.Brief on the merits. A brief on the merits is filed only if specifically requested by the supreme court. If the brief is requested, the supreme court generally allows thirty days to file it.
12.Response to brief on the merits. If a brief on the merits has been requested by the supreme court, a response brief should be filed. Generally, the supreme court allows twenty days to file a response brief on the merits.
13.Oral argument. Even if both sides request oral argument, the supreme court does not always grant it.
14.Motion for rehearing. A motion for rehearing is optional and is due fifteen days after the supreme court has issued its opinion.
The court may grant one or more extensions of the deadlines described above.
Temporary Orders During Appeal: Both title 1 and title 5 of the Texas Family Code provide for temporary orders for attorney’s fees during the pendency of an appeal. See Tex. Fam. Code §§ 6.709, 109.001. Both require notice and hearing. In a suit for dissolution of marriage, a temporary order may be rendered as considered equitable and necessary for the preservation of the property and for the protection of the parties during the appeal. Tex. Fam. Code § 6.709(a). In a suit affecting the parent-child relationship, the court may make any order necessary to preserve and protect the safety and welfare of the child during pendency of the appeal as the court may deem necessary and equitable. Tex. Fam. Code § 109.001(a). At least one appellate court has held that a temporary order for attorney’s fees pending appeal is limited to those fees incurred after a notice of appeal is filed. In re Marriage of Murgola & Blythe, No. 14-21-00139-CV, 2022 WL 3365264, at *5–6 (Tex. App.—Houston [14th Dist.] Aug. 16, 2022, no pet. h.) (mem. op.).
Mandamus: Unlike for appeals, there are no specific statutory provisions for the award of attorney’s fees for prosecuting or defending a petition for writ of mandamus.
[Sections 20.24 through 20.30 are reserved for expansion.]
III. Collecting Attorney’s Fees
§ 20.31Charging Interest on Attorney’s Fees
A lawyer may charge interest on unpaid balances of fees owed to the lawyer by a client, provided that the interest charged is reasonable and complies with custom and law and that the underlying fee is reasonable. Tex. Comm. on Prof’l Ethics, Op. 409 (1984). The original fee must not be excessive or unconscionable, in violation of rule 1.04(a) of the Texas Disciplinary Rules of Professional Conduct.
The interest rate must not violate Texas usury laws as set forth in chapters 301–305 of the Texas Finance Code. In some instances, the interest charged and the credit arrangements made must comply with Regulation Z (12 C.F.R. pt. 1026) of the Federal Truth in Lending Act (15 U.S.C. §§ 1601–1667f). Failure to comply with these state and federal provisions can result in both civil and criminal penalties, and lawyers must use utmost caution. For a discussion of these complex provisions, see State Bar of Texas, 1 Texas Collections Manual ch. 2 (2020 ed.).
It is improper for a lawyer to secure a judgment for legal fees against his client in the same suit in which the lawyer is representing the client. Tex. Comm. on Prof’l Ethics, Op. 374 (1974). Thus a lawyer may not prepare a divorce decree that includes a judgment for recovery of his fees against the client. Such conduct would violate rule 1.06 of the Texas Disciplinary Rules of Professional Conduct. However, a lawyer can include language in a divorce decree awarding debts to the husband and debts to the wife, including the husband’s attorney’s fees and the wife’s attorney’s fees. Allocating a debt for these attorney’s fees is far different from including language for a judgment for attorney’s fees.
The proper procedure would be to withdraw from representation in accordance with rule 1.15 of the Texas Disciplinary Rules of Professional Conduct and then intervene in the same suit or file a separate suit. See the discussion of withdrawal from representation in section 8.12 in this manual.
A lawyer may seek to recover attorney’s fees by intervening in the title 1 or title 5 suit. Careful consideration should be given to the ethical aspects of such an intervention and to the possible detrimental effect on the case of the lawyer’s client or former client. A lawyer representing a client whose former lawyer intervenes for fees should advise the client that an action for legal malpractice is a compulsory counterclaim to the action for fees.
“Nearly every continuing legal education article or speech on the topic . . . advises against suing your client for attorney’s fees. . . . Invariably your suit for attorney’s fees will be followed by a suit against you for some alleged act of malpractice.” Larry H. Schwartz, Attorney’s Fees, 1 State Bar of Tex. Prof. Dev. Program, Advanced Family Law Course 8 (2003). See also Kathryn J. Murphy, Attorney’s Fees Agreements, 1 State Bar of Tex. Prof. Dev. Program, Advanced Family Law Course 6 (2011). However, if the practitioner is determined to do so, he must first withdraw and then file suit. He may intervene if he can show that the intervention will not complicate the case and that the intervention is almost essential to effectively protect his interest. Collins v. Moroch, 339 S.W.3d 159, 163 (Tex. App.—Dallas 2011, pet. denied).
COMMENT: In an intervention for fees based on a client’s breach of an hourly-fee contract, the evidence, including the lawyer’s billing statements and witness testimony, must provide sufficient detail for the trial court to determine the nature of the work performed. See John H. Carney & Associates v. Ahmad, No. 07-15-00252-CV, 2016 WL 368527 (Tex. App.—Amarillo Jan. 28, 2016, pet. denied) (mem. op.).
§ 20.33Withholding of Services Until Fee Is Paid
Late payment or nonpayment of a fee does not justify withholding services from a client. If the client substantially fails to fulfill an obligation to the attorney regarding the attorney’s services, including an obligation to pay the attorney’s fee as agreed, the only recourse is to withdraw from representation. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(b)(5). Withdrawal is permitted only on written motion for good cause shown. Tex. R. Civ. P. 10. The attorney must take steps to the extent reasonably practicable to protect the client’s interests. These steps include giving reasonable warning to the client that the attorney will withdraw unless the obligation is fulfilled, allowing time to employ other attorneys, and surrendering papers and property to which the client is entitled. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(b)(5), (d). The attorney must continue representing the client, notwithstanding good cause to withdraw, if the court so orders. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(c). Withdrawal from representation is more fully discussed in section 8.12 in this manual.
A Texas lawyer was publicly reprimanded when, after obtaining a divorce for his client, he failed to distribute all the property awarded to the client. He kept certain properties in his own name and failed to return them because of a fee dispute with the client. The district grievance committee concluded that these actions constituted professional misconduct. 45 Tex. B.J. 203 (1982).
A lawyer may condition acceptance of employment on advance payment but may not condition completion of legal services on payment of unpaid portions of the fee. A client’s failure to pay for the lawyer’s services does not relieve the lawyer of the duty to perform completely and on time unless the lawyer withdraws from representation in a manner that does not prejudice the client’s legal rights. If a client refuses to pay for legal services, the lawyer may withdraw from representation. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(b)(5). Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect the client’s interests. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(d).
Often lawyers mistakenly believe that clients’ attempts to dismiss them can be denied on an attorney’s lien theory. An attorney who is discharged by a client must withdraw from employment. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(a)(3).
In Texas, a lien for attorney’s fees has a common-law rather than statutory basis. To perfect and maintain the lien, the lawyer must have actual possession of the client’s property and must make a demand for payment. Smith v. State, 490 S.W.2d 902, 910 (Tex. App.—Corpus Christi–Edinburg 1972, writ ref’d n.r.e.).
Assertion of Lien May Be Unethical: An attorney withdrawing from representation must take steps to the extent reasonably practicable to protect the client’s interests. Tex. Disciplinary Rules Prof’l Conduct R. 1.15(d). Thus, if assertion of an attorney’s lien would result in foreseeable prejudice to the client, the lien should not be exercised. Comm. on Interpretation of the Canons of Ethics, State Bar of Tex., Op. 395 (1979); Tex. Comm. on Prof’l Ethics, Op. 411 (1984).
If clients request payment or delivery of funds or other property to which they are entitled, attorneys have a duty to comply promptly. See Tex. Disciplinary Rules Prof’l Conduct R. 1.15(d). One lawyer was suspended from practice for three months for refusing to return a client’s files after repeated requests. Hebisen v. State, 615 S.W.2d 866 (Tex. App.—Houston [1st Dist.] 1981, no writ). In Smith v. State, 523 S.W.2d 1, 6 (Tex. App.—Corpus Christi–Edinburg 1975, writ ref’d n.r.e.), a disbarment proceeding, the jury found that a lawyer who refused to turn over a client’s file to her selected lawyer was not trying to exert an attorney’s lien but was instead willfully and wrongfully refusing to relinquish a client’s documents.
The lawyer is the agent of the client, and the work product generated by the lawyer in representing the client belongs to the client. In re George, 28 S.W.3d 511, 516 (Tex. 2000) (orig. proceeding).
COMMENT: To avoid potential embarrassment and ill will by the client, the lawyer should refrain from putting uncomplimentary comments in the client’s file.
In another case, the court held the following:
An attorney should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of his withdrawal. . . . [The attorney should give] due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm.
Robinson v. Risinger, 548 S.W.2d 762, 766 (Tex. App.—Tyler 1977, writ ref’d n.r.e.).
Under former DR 9-102(B)(4), a client has a right to the return of papers on request if the lawyer cannot claim an attorney’s lien. The court reasoned that, although a client’s remedy for a lawyer’s violation of this right would be a damage action sounding in tort, the fact that the client cast the violation in terms of breach of contract would not preclude damages if the client could prove the violation. Nolan v. Foreman, 665 F.2d 738, 742–43 (5th Cir. 1982). But see Martin v. Trevino, 578 S.W.2d 763, 770 (Tex. App.—Corpus Christi–Edinburg 1978, writ ref’d n.r.e.) (violation of former Code of Professional Responsibility will not give rise to private cause of action). However, the same court later stated that the appellee might seek recovery in a private cause of action against the appellant’s lawyer whose violation of the Code of Professional Responsibility rendered a postjudgment settlement agreement void and unenforceable. Quintero v. Jim Walter Homes, Inc., 709 S.W.2d 225, 233 (Tex. App.—Corpus Christi–Edinburg 1985, writ ref’d n.r.e.).
COMMENT: Returning a client's file has become increasingly important because most discovery is not filed with the court and many clients do not retain a complete copy of the papers sent to them during the course of the case. If a client subsequently changes lawyers, the second lawyer may be unaware of outstanding discovery requests or that discovery supplementation may be needed.
A court may not place an equitable lien on a former spouse’s real and personal property to ensure payment of attorney’s fees incurred in a postdivorce enforcement action. Higgins v. Higgins, 514 S.W.3d 382, 391 (Tex. App.—San Antonio 2017, pet. denied).
[Sections 20.35 through 20.40 are reserved for expansion.]
§ 20.41Appendix: Statutes and Rules—Attorney’s Fees
The following statutes and rules allow or relate to the recovery of attorney’s fees in family law litigation:
Family Code:
§ 6.502(a)(4) Temporary Injunction and Other Temporary Orders [Dissolution of Marriage]
§ 6.708(c) Costs: Attorney’s Fees and Expenses [Dissolution of Marriage]
§ 6.709(a)(2) Temporary Orders Pending Appeal [Dissolution of Marriage]
§ 8.0591(b) Overpayment [of Spousal Maintenance]
§ 8.206(b)(3) Liability and Obligation of Employer for Payments [of Spousal Maintenance]
§ 8.208(c) Employer’s Liability for Discriminatory Hiring or Discharge
§ 9.014 Attorney’s Fees [for Enforcement of Decree]
§ 9.106 Attorney’s Fees [for Obtaining QDRO]
§ 9.205 Attorney’s Fees [for Suit to Divide Undivided Property]
§ 41.002 Limit of Damages [for Liability of Parents for Conduct of Child]
§ 41.0025 Liability for Property Damages to an Inn or Hotel [for Liability of Parents for Conduct of Child]
§ 42.006 Damages [Civil Liability for Interference with Possessory Interest in Child]
§ 42.009 Frivolous Suit [Civil Liability for Interference with Possessory Interest in Child]
§ 81.005 Attorney’s Fees [for Obtaining Protective Order]
§ 81.006 Payment of Attorney’s Fees [for Obtaining Protective Order]
§ 105.001(a)(5) Temporary Orders before Final Order [in SAPCR]
§ 106.002 Attorney’s Fees and Expenses [SAPCR]
§ 107.23(a) Fees in Suits Other Than Suits by Governmental Entity [for Professionals] [SAPCR]
§ 109.001(a)(5) Temporary Orders During Pendency of Appeal [SAPCR]
§ 152.208(c) Jurisdiction Declined by Reason of Conduct [UCCJEA]
§ 152.308(b)(5) Expedited Enforcement of Child Custody Determination [UCCJEA]
§ 152.312 Costs, Fees, and Expenses [UCCJEA]
§ 154.012(b) [Child] Support Paid in Excess of Support Order
§ 156.005 Frivolous Filing of Suit for Modification
§ 157.110 Forfeiture of Security for Failure to Comply with Order [Enforcement]
§ 157.162(b) Proof [SAPCR Enforcement]
§ 157.167 Respondent to Pay Attorney’s Fees and Costs [SAPCR Enforcement]
§ 157.211(5) Conditions of Community Supervision [SAPCR Enforcement]
§ 157.268(6) Application of Child Support Payment [SAPCR Enforcement]
§ 157.318(a) Duration and Effect of Child Support Lien [SAPCR Enforcement]
§ 157.319(c) Effect of Lien Notice [SAPCR Enforcement]
§ 157.322(a) Mandatory Release of Lien [SAPCR Enforcement]
§ 157.323(c)(1) Foreclosure or Suit to Determine Arrearages [SAPCR Enforcement]
§ 157.330(b) Failure to Comply with Notice of Levy [SAPCR Enforcement]
§ 157.375(b) Immunity to Civil Process [SAPCR Enforcement]
§ 158.0051(a), (c) Order for Withholding for Costs and Fees
§ 158.102 Time Limitations [Withholding]
§ 158.206(b)(3) Liability and Obligation of Employer [Withholding]
§ 158.209(c) Employer’s Penalty for Discriminatory Hiring or Discharge [Withholding]
§ 159.102(28) Definitions [UIFSA]
§ 159.305(b)(11) Duties and Powers of Responding Tribunal [UIFSA]
§ 159.313(b), (c) Costs and Fees [UIFSA]
§ 160.636(c) Order Adjudicating Parentage; Costs
§ 160.762(d) Effect of Gestational Agreement That Is Not Validated
§ 231.006(f) Ineligibility to Receive State Grants or Loans or Receive Payment on State Contracts
§ 231.211(a) Award of Cost Against Nonprevailing Party in Title IV-D Case
§ 231.303(c) Title IV-D Administrative Subpoena
§ 261.107(d) False Report; Criminal Penalty; Civil Penalty [Child Abuse or Neglect]
§ 261.108(b), (c)(2) Frivolous Claims Against Person Reporting
§ 261.110(d)(4) Employer Retaliation Prohibited
Civil Practice and Remedies Code:
§ 18.001 Affidavit Concerning Cost and Necessity of Services
§ 37.009 Costs [Declaratory Judgment]
§ 38.001 Recovery of Attorney’s Fees
§ 38.002 Procedure for Recovery of Attorney’s Fees
§ 38.003 Presumption
§ 38.004 Judicial Notice
§ 171.048(c) Representation by Attorney; Fees [Arbitration]
Government Code:
§ 804.003(c) Qualified Domestic Relations Orders [Public Retirement System]
Property Code:
§ 92.016(e) Right to Vacate and Avoid Liability Following Family Violence
§ 92.017(h) Right to Vacate and Avoid Liability Following Certain Decisions Related to Military Service
Texas Rules of Civil Procedure:
Rule 162 Dismissal or Non-suit
Rule 166a(h) Summary Judgment
[Chapters 21 and 22 are reserved for expansion.]