In Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985), the Florida Supreme Court adopted the federal “lodestar” method for determining the amount of reasonable attorney’s fees and costs in contested proceedings. However, our supreme court also made clear that “how” trial judges go about explaining the reasons for their fee orders is just as important as what their ultimate rulings are. If a fee order’s going to get reversed, it’s almost always because the trial judge got the “how” part wrong.
How to draft attorney’s fees and costs orders that won’t get reversed on appeal
In Rowe the court held that the only way a trial judge can assure parties that the amount of attorney’s fees/cost they’re paying was determined in a just, objective and uniform manner is to enter orders containing detailed findings of fact as to the appropriate:
- hourly rate,
- number of hours reasonably expended, and
- the appropriateness of reduction or enhancement factors listed in Rule 4-1.5(b) of the Rules of Professional Conduct.
Case Study No. 1
If a fee order doesn’t contain these findings it is per se erroneous and subject to reversal. In other words, even if the trial judge’s fee order reaches the right conclusion, if it doesn’t explain in detail the reasons why (thereby giving all interested parties confidence in the ruling’s fairness), the order is per se wrong. That’s what happened in the linked-to case above (a contested probate proceeding) applying the fee-shifting rule found in Probate Rule 5.080, and why the order was reversed:
In awarding attorney’s fees, the trial court made two distinct findings; first, entitlement to fees and, second, the reasonable amount of such fees. Entitlement to attorney’s fees is largely a question of law. While specific factual findings are helpful when reviewing a determination of entitlement, such findings are not essential where, like here, “entitlement to attorney’s fees is based on the interpretation of contractual provisions … or a statute … as a pure matter of law….” Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007).
However, where the court sets the amount of the fee, “[t]he law is clearly established that an award of attorney’s fees ‘must … contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.’” Quality Holdings of Fla., Inc. v. Selective Invs., IV, LLC, 25 So.3d 34, 37 (Fla. 4th DCA 2009) (citations omitted) (emphasis added). This lodestar method of determining reasonable attorney’s fees, adopted by our state Supreme Court in Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985), applies equally to probate matters. See In re Estate of Platt, 586 So.2d 328, 335 (Fla.1991). Because the trial court here did not make written findings in the order in which it awarded $9,870.00 worth of attorney’s fees against Bishop, it is not possible to ascertain from the face of the order whether the trial court considered and determined the reasonable number of hours expended and the reasonable hourly rate(s).
Case Study No. 2
Our state court system is overworked and under-resourced. The probate bench is no exception. So if a probate judge believes some’s asking for excessive attorneys fees, the temptation is to simply cut the request by a certain % and call it a day. Understandable, but counter to the full-disclosure ethos underlying Rowe. If a judge is going to cut your fees, same rules apply: NO detailed findings of fact explaining the reasons why = REVERSAL.
This case involved a contested guardianship proceeding in which the probate judge cut one co-guardian’s attorney’s fee request by 40% in an order that didn’t contain detailed findings of fact explaining the reasons why. Maybe a 40% cut was the right call, maybe it wasn’t. Under Rowe it doesn’t matter if the order doesn’t contain detailed findings of fact explaining itself. By the way, also note the parting reference to the need for itemized “cost” findings.
[T]he trial court’s order contains insufficient findings; it does not comply with the requirement that the court make express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. Furthermore, the trial court’s order fails to explain the basis for a reduction in fees which the court determined was for “multiple lawyers on the same matter.” While this reduction may have been warranted, the trial court should make a specific finding explaining which work was duplicative. The mere fact that both a partner and an associate appeared at a particular proceeding does not necessarily mean that their work was duplicative.
Although the trial court utilized the correct legal standard in concluding that the legal services must be beneficial to the ward to be compensable, see § 744.108, Fla. Stat. (2010), Thorpe v. Myers, 67 So.3d 338, 345 (Fla. 2d DCA 2011), on remand, the trial court should make a specific finding as to which fees and costs were non-compensable on this ground. The trial court’s conclusion that only 60% of the services of the father’s attorneys benefitted the ward was not supported by any specific findings. In short, “[t]he circuit court’s order must set forth the basis for the award, including the hours determined to be compensable, the hourly rate, and the other factors considered in arriving at the award.” Id. at 346. Additionally, as appellant points out, the order failed to itemize the costs allowed. On remand, the trial court “must also itemize the costs allowed.” Id.