Statler v. Dodson
Annotate this Case
September 1995 Term
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No. 22544
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LINDA M. STATLER,
GUARDIAN OF DESTINY LYNN WARE,
Petitioner Below, Appellee,
v.
VEL ANNE DODSON,
EXECUTRIX OF ESTATE OF RICHARD A. WARE,
Respondent Below, Appellee
MICHAEL L. SCALES,
Appellant
__________________________________________________________________
Appeal from the Circuit Court of Jefferson County
Honorable Thomas W. Steptoe, Jr., Judge
Civil Action No. 91-P-44
REVERSED AND REMANDED
__________________________________________________________________
Submitted: September 13, 1995
Filed: December 13, 1995
Linda M. Statler Braun A. Hamstead, Esq.
Pro Se Nancy A. Dalby, Esq.
Hamstead & Associates, L.C.
Cindy L. Scales, Esq. Charles Town, West Virginia
Martinsburg, West Virginia Attorneys for Ms. Dodson
Attorney for the Appellant
JUSTICE RECHT delivered the Opinion of the Court.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate.
SYLLABUS BY THE COURT
1. Although at common law a contract by an infant for legal services not
for necessaries could not be implied, we find that contracts for legal services between infants
and their lawyers will be implied and therefore, enforceable: provided, (1) the employment
of a lawyer on behalf of the infant was reasonably necessary; (2) the contract was fair and
reasonable at the time it was entered; and, (3) the contract is fair in relation to the amount
of legal services needed and performed.
2. "Where an attorney has been discharged, without fault on his part, from
further services in a suit just begun by him under a contract for payment contingent upon
successful prosecution of the suit, his measure of damages is not the contingent fee agreed
upon, but the value of his services rendered; and in the absence of evidence of the reasonable
value of such services, no recovery can be had." Syllabus, Clayton v. Martin, 108 W. Va.
571, 151 S.E. 855 (1930).
3. "Where attorney's fees are sought against a third party, the test of what
should be considered a reasonable fee is determined not solely by the fee arrangement
between the attorney and his client. The reasonableness of attorney's fees is generally based
on broader factors such as: (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in similar cases."
Syllabus Point 4, Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986).
Recht, Justice:
Michael L. Scales, a former counsel of record for Destiny Lynn Ware, an
infant, seeks attorney's fees for the services he performed on her behalf. Mr. Scales appeals
a decision of the Circuit Court of Jefferson County denying his attorney's fees based on
findings that the action was adversarial to the estate of Richard A. Ware, and that no implied
contract existed between Mr. Scales and Miss Ware, the pretermitted child of Richard A.
Ware. Because we find that Mr. Scales may be entitled to attorney's fees, payable on behalf
of Miss Ware by her guardian, Linda M. Statler, we remand this case for a determination of,
first, whether Mr. Scales' employment on behalf of Miss Ware was reasonably necessary
and, second, if said employment is found reasonably necessary, whether the amount of legal
fees requested by Mr. Scales is a "reasonable fee" under the factors outlined in Rule 1.5
(1990) of the Rules of Professional Conduct and in Syl. pt. 4, Aetna Cas. & Sur. Co. v.
Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986).
I.
FACTS AND BACKGROUND
When Richard A. Ware died on March 9, 1990, his fiancée, Ms. Statler, was
expecting their child, Destiny Lynn Ware, who was born on November 14, 1990. The
decedent's will appointed Vel Ann Dodson, one of his then living children, Executrix of his
estate. At first, the estate denied the decedent's paternity of the unborn child. On April 6,
1990, Ms. Statler engaged Mr. Scales to represent her interests and the interests of her unborn child "individually and a next friend of Baby Ware."See footnote 1 Ms. Statler agreed that Mr.
Scales would receive one-third of the amount recovered on behalf of her child if Mr. Scales
asserted and proved that her child was the pretermitted child of Mr. Ware under W. Va. Code
41-4-1 (1972).See footnote 2
Mr. Scales arranged for blood testing which showed that the infant was the
natural child of the decedentSee footnote 3 and, as such is a pretermitted child. Mr. Scales, on behalf of
Miss Ware, petitioned the circuit court for the infant's share of the decedent's estate. He also filed an answer and counter claim in another civil action and advanced some of the costs of
the litigation. According to a letter received by this Court on November 3, 1995 from Ms.
Statler, Ms. Statler, after a meeting with the decedent's family during which the family
acknowledged that Miss Ware was the decedent's daughter, informed Mr. Scales of the
agreement and requested that he not proceed with the litigation. The record is not clear about
when this meeting between Ms. Statler and Mr. Scales occurred. Ms. Statler maintains that
after this meeting Mr. Scales continued with the litigation. According to Ms. Statler, on
March 9, 1992, Ms. Statler wrote to Mr. Scales dismissing him, and shortly thereafter,
entered into an agreement with the estate whereby her child, Miss Ware, would receive a
distribution from the estate. The estate, by letter dated March 18, 1991, had accepted Miss
Ware but the letter left blank the amount of distribution. The distribution was in the amount
of $26,121.57, with interest thereon at the legal rate from November 1990 for a total of
$28,121.57.
Mr. Scales requested attorney's fees of $12,377.86 based on his 24 hours of
actual services rendered at $110 per hour or, in the alternative $9,737.86 based on the one-
third contingency fee of the March 18, 1991 distribution.See footnote 4 Mr. Scales also requests to be
reimbursed $301 for the costs he advanced.
After Ms. Statler advised Mr. Scales that he was discharged and she would
"negotiate her own settlement," Mr. Scales withdrew as counsel of record and filed a motion
in circuit court requesting attorney's fees. In his May 26, 1992 motion to the circuit court,
Mr. Scales argued that payment of these fees was required under the contingency fee
agreement. The circuit court denied the attorney's fee motion based on its findings that the
unborn child could not enter into a contract by next friend, that no services were performed
at the instance of the infant or her legal guardian and that Mr. Scales' services had not
benefited the estate. Mr. Scales appealed to this Court. On appeal, although the estate takes
no position relative to the payment of attorney's fees out of Miss Ware's portion of the estate,
the estate argues that because Mr. Scales' services accrued no benefit to the estate, the
requested fees should not be charged to the estate. During oral argument, Ms. Statler
maintained that although she did not oppose the payment of some fee to Mr. Scales, she
thought that the amount requested was unreasonable, given the service provided specifically
after she requested that the litigation be delayed. Ms. Statler indicated that she was willing
to pay about $2,400 in attorney's fees.
II.
RECOVERY FROM THE ESTATE
Ms. Dodson, the executrix of the decedent's estate, argues that any fees
awarded in this case should not be chargeable to the estate because this action was
adversarial to the estate. We have traditionally held that when an action is adversarial to the
estate, the attorneys' fees generated on behalf of that adversarial action are not chargeable to the estate. Syl. pt. 3, Security Nat. Bank & Trust Co. v. Willim, 153 W. Va. 299, 168 S.E.2d 555 (1969), states:
The services of an attorney cannot be rewarded by fees paid
out of an estate where such attorney has represented litigants
who sought to recover funds from an estate in a purely
adversary capacity.
Accord Farrer v. Young, 159 W. Va. 853, 863, 230 S.E.2d 261, 267 (1976); Syl. pt. 6,
Wheeling Dollar Savings & Trust Co. v. Leedy, 158 W. Va. 926, 216 S.E.2d 560 (1975).
In Security National, we approved the payment of attorneys' fees when the litigation
benefited the estate, but when "the litigation merely involve[d] a dispute between the parties
in adversary proceedings," no attorneys' fees for clients adverse to the estate were payable
from the estate. There were two phases of litigation in Security National; the first stage
involved litigation which resulted in the determination that an adopted daughter of the
testatrix's granddaughter took nothing under the will. Attorneys' fees were awarded because
"that litigation promoted the interests of the parties who finally prevailed." Security Nat.
Bank & Trust Co. v. Willim, 153 W. Va. at 306, 168 S.E.2d at 559. During the second stage,
the litigation resulted from the unsuccessful attempts of the estates of a niece and a nephew
of the testatrix to be take under the will. We denied attorneys' fees in the second phase
because although in the first phase the interests of the estates of the niece and the nephew
were "inimical to those of" the estate, "they became adversaries" in the second phase.
Security Nat. Bank & Trust Co. v. Willim, 153 W. Va. at 305, 168 S.E.2d at 559.
In Syl., Beuter v. Beuter, 122 W. Va. 103, 7 S.E.2d 505 (1940), we stated:
In the absence of a valid contract of employment, an allowance
of fees to an attorney, payable out of the estate of a decedent,
can only be justified upon a showing of services beneficial to
the estate, or necessary to its settlement, as distinguished from
services performed for a client presenting a claim against the
estate.
Beuter denied the payment of the attorneys' fees from the estate to a lawyer who brought suit
on behalf of the decedent's former wife claiming a part of his estate. We denied the payment
of the attorneys' fees of the former wife because "the claims as to the marital relationship and
alleged indebtedness. . . were in no sense in the interest of the estate but against it and its
creditors." Beuter v. Beuter, 122 W. Va. at 107, 7 S.E.2d at 507.
Because Mr. Scales was representing a client whose interests were adversarial
to the estate, we find that the circuit court did not err in finding that the estate is not liable
for the payment of any attorney's fees sought by Mr. Scales.
III.
CONTRACT BY INFANT FOR LEGAL SERVICES
Mr. Scales maintains that the circuit court erred in holding that no contract
existed between him and the infant, Miss Ware, for the payment of his fees. The circuit
court found that no express contract existed because on April 6, 1990, the infant was not a
person in being when her mother, as her next friend, engaged the legal services of Mr.
Scales. The circuit court also found that no contract could be implied because the legal
"services were not performed at the instance of . . . [the infant] or her legal guardian, nor
could they be classified as necessaries." The circuit court denied Mr. Scales motion for fees because although "it appears that Mr. Scales has benefitted . . . [the infant] mightily," the
court knew "of no legal theory upon which it can made the proceeds of this estate to be
distributed to . . . [the infant] chargeable for Mr. Scales' fees."
Although at common law a contract by an infant for legal services not for
necessaries could not be implied, because of the need to assure an infant's access to the
judicial system, we find for the reasons discussed hereafter that contracts for legal services
between infants and their lawyers will be implied and therefore, enforceable: provided, (1)
the employment of a lawyer on behalf of the infant was reasonably necessary; (2) the
contract was fair and reasonable at the time it was entered; and, (3) the contract is fair in
relation to the amount of legal services needed and performed.
The traditional means of protecting an infant's interest was to refuse to imply
contracts involving infants except for obligations to pay for necessaries.See footnote 5 When the contract
was for necessaries, the infant's liability was found not on the actual contract but upon a
contract implied by law, or a quasi contract.See footnote 6 See Bear's Adm'x v. Bear, 131 Va. 447, 109 S.E. 313 (1921); H. R., Annotation, Liability of Infant or his Estate for Rent, 68 A.L.R. 1185
(1930). When a contract for legal services falls within the concept of "necessaries," courts
have generally used a quasi contract theory to uphold such legal contracts. See B.B.B.,
Annotation, Power of Guardian ad Litem or Next Friend to Bind Infant by his Contract with
Attorney Fixing Compensation, 7 A.L.R. 108 (1920). Legal services rendered for
prosecution of an infant's claim based on personal injuries, or protection of an infant's liberty,
security or reputation, have generally been considered necessaries rendering the infant liable
for such service. However, most courts have held that legal services relating to an infant's
estate do not constitute necessaries. See McIsaac v. Adams, 190 Mass. 117, 76 N.E. 654
(1906) (infant's property rights do not come within the term "necessaries'); Englebert v.
Troxell, 40 Neb. 195, 58 N.W. 852 (1894); Grissom v. Beidleman, 35 Okla. 343, 129 P. 853
(1912); Munson v. Washband, 31 Conn. 303 (1863); Annotation, Infant's liability for
Services Rendered by Attorney At Law under Contract with Him, 13 A.L.R.3d 1251 (1967).
Because the harshness of the necessaries rule, various theories have been
advanced to justify implying a contract for legal services not involving the traditional
necessaries. Some courts have broadened the definition of necessaries to include the
protection of valuable property rights. See Epperson v. Nugent, 57 Miss. 45 (1879) (infant,
without guardian, liable for legal fees incurred to protect infant's property rights, which were
held to constitute necessaries); Roberts v. Vaughn, 142 Tenn. 361, 219 S.W. 1034 (1920)
(infant's legal fees in a suit against his father's will were considered necessaries); Charles v. Whitt, 187 Ky. 77, 218 S.W. 994 (1920) (legal services to protect infant's property rights
may be treated as necessaries); Owens v. Gunther, 75 Ark. 37, 86 S.W. 851 (1905)
(considered as necessaries the legal services protecting an infant's property rights in a suit
where interests of the infant and his guardian were adverse). Other courts have implied a
contract when the infant benefits from the legal services performed. See Porter v. Wilson,
106 N.H. 270, 209 A.2d 730 (1965)(advancing "from the concept of necessaries to the
concept that an infant is liable to make restitution for the benefit he receives whether or not
classed as necessaries"); Sneed v. Sneed , 681 P.2d 754 (Okla. 1984)(attorney's work inured
for the infant's benefit, which was affirmed by infant on reaching her majority, required the
payment of "reasonable fees"). Some courts have applied a "restoration theory" to require
a minor to pay legal fees "to restore" to the attorney the time and effort expended on behalf
of the infant. See Downey v. Northern Pac.R. Co., 72 Mont. 166, 232 P. 531 (1924);
Spencer v. Collins, 156 Cal. 298, 104 P. 320 (1909).
Several other courts have approved the award of legal fees involving
representation of an infant. In Leonard C. Arnold, Ltd. v. Northern Trust Co. of Chicago,
139 Ill. App.3d 683, 93 Ill. Dec. 843, 487 N.E.2d 668, 671 (Ill. App. 1985), aff'd in part, and
rev'd in part, 116 Ill. 2d 157, 107 Ill. Dec. 224, 506 N.E.2d 1279 (1987) (a personal injury
suit involving a minor), the Illinois appellate court noted that the "allowance of a claim for
attorney's fees against a minor's estate is within the discretion of the court." (Citation
omitted.) The Illinois appellate court noted that the minor's next friend, who initiates suit
on behalf of the minor, "can employ an attorney to represent the minor's claim and agree to pay a reasonable fee out of any recovery." The court looked to various provisions in the
Illinois Probate Act, which sought to protect the minor's interest and to allow representation
of the minor's interest and determined that the legal fee should be examined to determine "the
reasonableness of the fees earned in this matter by the Attorneys." 139 Ill. App.3d at ___,
93 Ill. Dec. at ___, 487 N.E.2d at 673.
In Nixon v. Bryson, 488 So. 2d 607, 609 (Fla. App.), review denied, sub. nom.,
Ratiner & Glinn v. Bryson, 494 So. 2d 1152 (Fla. 1986) (wrongful death action brought of
behalf of a minor), the Florida court held "that for a contract for legal services on behalf of
a minor to be binding on the minor, the trial court must consider not only whether it was
reasonably necessary to employ an attorney on behalf of the minor and whether the contract
was fair and reasonable at the time it was entered into, but also whether the contract was fair
in relation to the amount of legal services performed."
In determining whether to allow a contract for legal services on behalf of an
infant to be binding on the infant, we are guided by "the policy of the law to protect infants
against their own mistakes or improvidence, and from designs of other, and to discourage
adults from contracting with an infant." 43 C.J.S. Infants § 180 (1978). We note that an
infant's participation in a legal action is dealt with by the W.V.R.Civ.P., Rule 17 (c) (1978),See footnote 7 W. Va. Code 56-4-9 (1923) ("[a]ny minor entitled to sue may do so by his next friend or
guardian"), W. Va. Code 56-4-10 (1923) (requiring appointment of a "guardian ad litem to
such infant or insane defendant"),See footnote 8 and W. Va. Code 56-10-4 (1982) (requiring court
approval of a compromise involving an infant).
Although the Code and the Rules assure the protection of an infant's interests
after the institution of a legal action, unless fees for legal services on behalf of an infant are
allowed, most infants would be denied access to the judicial system, except for necessaries.
The key to accessing the judicial system is legal representation. If minors are not required
to pay for legal representation, they will not be able to protect their various interests.
However, because of the need to assure that the infant's interests are protected from the legal
representation, we find that contracts for legal services between infants and their lawyers will be implied and therefore, enforceable only when: (1) the employment of a lawyer on behalf
of the infant was reasonably necessary; (2) the contract was fair and reasonable at the time
it was entered; and, (3) the contract is fair in relation to the amount of legal services needed
and performed. This three-part standard requiring the determinations, first, that the legal
employment was "reasonably necessary," second, that the contract was fair and reasonable
at the time it was entered, and third, that the legal fees were "reasonable" in relation to the
legal service needed and performed, is similar to the two part determination for the payment
of a guardian ad litem under W. Va. Code 56-4-10 (1923). See note 8 for payment provision
of W. Va. Code 56-4-10.
In this case, we note that Ms. Statler, as next friend of Miss Ware, entered a
thirty-three and one-third percent (33 1/3%) contingency fee agreement with Mr. Scales.See footnote 9
In the agreement, Mr. Scales was to secure for Miss Ware, a portion of her father's estate who died testate but without provision for Miss Ware. Although the circuit court stated that
Mr. Scales's representation had benefitted Miss Ware, we do not find that statement provides
a sufficient basis to determine that legal representation was "reasonably necessary" to protect
Miss Ware's interests. On remand, the circuit court should determine if Mr. Scales'
representation was "reasonably necessary" to protect Miss Ware's interests. If the circuit
court finds under the circumstances that the representation was not reasonably necessary, no
attorney's fees need to be awarded.
If the representation is found to be "reasonably necessary," generally, the
circuit court would then proceed to examine the contract for legal services to determine if
the contract was fair and reasonable at the time it was entered and if the fees sought were
"reasonable" for the legal services needed and performed. In this case, provided the circuit
court has determined that Mr. Scales' legal services were reasonably necessary to protect
Miss Ware's interests, the circuit court, because of Mr. Scales' dismissal, needs only to
determine if the contract, without considering the contingent fee formula, was fair and
reasonable when it was entered. The circuit court does not need to determine if this
contingent fee formula was "fair and reasonable" and if the fee was "reasonable;" rather,
because of Mr. Scales' dismissal, any award of fees must be based on quantiam merit
theory.See footnote 10 See infra section IV for a discussion not only of why quantiam merit is the only theory of recovery possible in this case, but also what factors are to be utilized in
determining what constitutes a reasonable attorney fee.
IV.
ATTORNEY'S FEES
The final issue concerns the proper amount of attorney's fees in this matter.
Mr. Scales seeks $12,377.86 in attorney's fees plus $301 in non-reimbursed costs. Ms.
Statler disputes the reasonableness of the amount of legal fees requested and during oral
argument, maintained that Mr. Scales continued to litigate the matter after she requested him
to delay based on information she received during her meeting with the decedent's family.
In oral argument, Ms. Statler stated that she is willing to pay some attorney's fees and
indicated the amount previously discussed with Mr. Scales was $2,400 based on 24 hours
of service up until she requested he delay the litigation. Mr. Scales, in a letter from his
counsel to this Court dated October 18, 1995, disputes that he "had informed her that a sum had been agreed upon in the amount of two thousand four hundred ($2,400.00) for attorney's
fees."
First, we note that Mr. Scales requests that he receive the benefit of the
contingent fee agreement even though his representation was terminated before a successful
completion of the suit.See footnote 11 Basically, Mr. Scales seeks $9,737.86 for the eight and four tenths
(8.4) hours of service he provided before the estate's letter of March 18, 1991 acknowledging
Miss Ware as the decedent's daughterSee footnote 12 and $110 per hour for the remaining 24 hours of
service he provided.See footnote 13
We have long held that in cases where an attorney is discharged, without fault
on his or her part, the attorney is not entitled, as a matter of law, to recover the whole
contingent fee, but the attorney may recover the reasonable value of his or her services. See Polsley & Son v. Anderson, 7 W. Va. 202 (1874). The Syllabus of Clayton v. Martin, 108
W. Va. 571, 151 S.E. 855 (1930) states:
Where an attorney has been discharged, without fault on his
part, from further services in a suit just begun by him under a
contract for payment contingent upon successful prosecution of
the suit, his measure of damages is not the contingent fee agreed
upon, but the value of his services rendered; and in the absence
of evidence of the reasonable value of such services, no
recovery can be had.
See Metzner v. Metzner, 191 W. Va. 378, 386, 446 S.E.2d 165, 173 (1994); May v. Seibert,
164 W. Va. 673, 681, 264 S.E.2d 643, 647 (1980). Recently in Hardman v. Snyder, 183 W.
Va. 34, 35, 393 S.E.2d 672, 673 (1990)(per curiam), we reviewed holdings from other
jurisdictions, which review led us to conclude that "[t]he rule enunciated in Clayton is also
the general rule elsewhere."
The rationale for this principle is based on the "special relationship of trust and
confidence between attorney and client [and therefore] the client may terminate the
relationship at any time, with or without cause." Covington v. Rhodes, 38 N.C. App. 61,65,
247 S.E.2d 305, 308 (1978), reviewed denied, 296 N.C. 410, 251 S.E.2d 468 (1979).
Because Ms. Statler terminated Mr. Scales' services, he can not recover based on the
contingency fee but can recover in quantum meruit.
In this case, Mr. Scales has submitted an itemized list of the date, time and
services he performed. In Clayton v. Martin, 108 W. Va. at 575, 151 S.E. at 857, we said:
"It is axiomatic that in a suit on quantum meruit for services the value of the services must
be shown and not left to conjecture. Stafford v. Bishop, 98 W. Va. 625 [127 S.E. 501 (1925)]." See Hardman v. Snyder, supra for a discussion of a case where detailed
information on the legal services was not provided.
When an itemized list is provided, the list must be examined to determine if
the fee is reasonable. Rule 1.5(a) (1990) of the Rules of Professional Conduct begins by
stating that "[a] lawyer's fee services shall be reasonable" and the rule provides consideration
of the following factors to determine the reasonableness of a fee:
(1) the time and labor required, the novelty and difficulty of
the questions involved, and 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 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.See footnote 14
In Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 195, 342 S.E.2d 156, 161
(1986), we found that "[t]he reasonableness of attorney's fees is generally based on broader
factors such as those listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)." We also noted that the Johnson factors were similar to the factors summarized
in Syl. pt. 3, Stafford v. Bishop, 98 W. Va. 625, 127 S.E. 501 (1925):
In determining the value of an attorney's services upon a
quantum meruit, a jury may take into consideration evidence as
to the attorney's ability, skill, experience, diligence, and
standing in his profession, as well as the nature and extent of the
services performed, the difficulties encountered, the
responsibility assumed, the amount involved, the physical and
mental labor expended, the results achieved, their benefit to the
client, and the usual and customary charges for like services in
the same vicinity.
Thus the determination of the reasonableness of attorney's fees depends upon the
consideration of various factors. Syl. pt. 4, Aetna v. Pitrolo, supra states:
Where attorney's fees are sought against a third party, the test
of what should be considered a reasonable fee is determined not
solely by the fee arrangement between the attorney and his
client. The reasonableness of attorney's fees is generally based
on broader factors such as: (1) the time and labor required;
(2) the novelty and difficulty of the questions; (3) the skill
requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the undesirability of the case; (11) the nature and length of
the professional relationship with the client; and (12) awards in
similar cases.
Accord State ex rel. W. Va. Highlands Conservancy, Inc. v. W. Va. Div. of Environmental
Protection, 193 W. Va. 650, 458 S.E.2d 88, 93 (1995); Daly v. Hill, 790 F.2d 1071, 1075 n.2
(4th Cir. 1986)(The consideration of these factors for evaluating attorney's fees "was
endorsed by Congress when it enacted [42 U.S.C.] § 1988" and "approved of by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 434 n.9, 103 S. Ct. 1933, 1940 n.9, 76 L. Ed. 2d 40 [, 51 n.9] (1983)."); Ball v. Willis, 190 W. Va. 517, 525, 438 S.E.2d 860, 868 (1993);
Bishop Coal Co. v. Salyers, 181 W. Va. 71, 81, 380 S.E.2d 238, 248 (1989). See also
Farrarr v. Hobby, 506 U.S. ___, 113 S. Ct. 566, 574-75, 121 L. Ed. 2d 494, 505
(1992)(compare total relief actually achieved by the plaintiff with relief sought to determine
"the degree of success" for setting attorney's fees).
The United States Supreme Court in Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 1547, 79 L. Ed. 2d 891, 900 (1984), considered the Johnson factors and required
reasonable fees "to be calculated according to the prevailing market rates in the relevant
community regardless of whether plaintiff is represent by private or non-profit counsel."
According to Blum, the determination of "an appropriate 'market rate' for the services of a
lawyer is inherently difficult" and recommended consideration include the types of services
performed and the rates charged in similar circumstances. 465 U.S. at 895 n.11, 104 S. Ct.
at 1547 n.11, 79 L. Ed. 2d at 900 n.11.
V.
CONCLUSION
Because a circuit court can imply a contract for legal services with an infant
if the legal services are determined to be reasonably necessary to protect the infant's interest,
we remand this case to the circuit court for that determination. If the circuit court determines
that Mr. Scales' legal services were reasonably necessary to protect Miss Ware's interests,
then the circuit court should proceed to consider, if, except for the contingent fee formula, the contract was fair and reasonable at the time it was entered and, if both predicates are
present, the reasonableness of the requested legal fees under the factors outlined in Rule 1.5
of the Rules of Professional Conduct and Syl. pt. 4 of Aetna v. Pitrolo. Given Mr. Scales'
dismissal, the circuit court need not consider the contingency fee provision. These
determinations indicate the need for a hearing on, first, the reasonable necessity of the legal
representation, second, if appropriate, reasonableness of the contract when it was entered,
and, third, if appropriate, the reasonableness of the requested attorney's fees followed by the
preparation of findings of fact and conclusions of law as predicates to the ultimate decision
as to the amount of fees to be paid by Ms. Statler as guardian of Miss Ware.
Accordingly, we reverse the Circuit Court of Jefferson County's decision
denying the payment of non-reimbursed costs and attorney's fees and remand for a hearing
consistent with the above stated principles.
Reversed and remanded.
Footnote: 1
The record does not indicate that Mr. Scales ever informed Ms. Statler that the Child
Advocate Office could pursue a paternity action on her behalf at no charge. The better
practice for attorneys to follow in cases necessitating a paternity determination is at least to
inform the individual seeking said resolution that such service is provided by the Child
Advocate Office at no charge. Footnote: 2
W. Va. Code 41-4-1 (1972) states:
If any person die [sic] leaving a child, or his wife with child,
which shall be born alive, and leaving a will made when such
person had no child living, wherein any child he might have is
not provided for or mentioned, such child, or any descendant of
his, shall succeed to such portion of the testator's estate as he
would have been entitled to if the testator had died intestate; and
towards raising such portion the devisees and legatees shall, out
of what is devised and bequeathed to them, contribute ratably,
either in kind or in money, as a court, in the particular case, may
deem most proper. But if any such child, or descendant, die
under the age of eighteen years, unmarried and without issue,
his portion of the estate, or so much thereof as may remain
unexpended in his support and education, shall revert to the
person or persons to whom it was given by the will.Footnote: 3
According to the brief for Ms. Dodson, the estate acknowledged that Miss Ware was
the decedent's child based on physical characteristics that became apparent as the child
matured. Ms. Dodson alleges that the blood test results were suspect because of various
procedural mistakes. Footnote: 4
Mr. Scales' request for $12,377.86 is based on one-third of the distribution
($9,737.86) plus the 24 additional hours, at his $110 hourly rate, that he spent on the case
after the distribution. According to the report submitted by Mr. Scales, he spent a total of
31.75 hours on the case, with most of his time spent after the March 18, 1991 letter from the
decedent's estate to Ms. Statler accepting Miss Ware as the decedent's daughter.Footnote: 5
Necessaries generally include food, clothing, shelter and medical services for an
infant and family. The determination of what constitutes necessaries is a mixed question of
law and fact to be decided on a case-by-case basis.Footnote: 6
With an express contract involving an infant, generally the common law divided such
agreements into three classes: absolutely void, voidable and valid. "Agreements which were
deemed clearly for the advantage of the infant were valid and absolutely binding, while those
injurious to the infant were void. Agreements to effect of which might be beneficial or might
be injurious were held voidable at the election of the infant on arrival at maturity." 42 Am.
Jr. 2d Infants § (1969). However, in this case there was no express contract by the infant
with Mr. Scales for legal services. Footnote: 7
Rule 17 (c) states:
Infants, incompetent persons, or convicts. -- Whenever an
infant, incompetent person, or convict had a duly qualified
representative, such as a guardian, curator, committee or other
like fiduciary, such representative may sue or defend on behalf
of the infant, incompetent person, or convict. If a person under
any disability does not have a duly qualified representative he
may sue by his next friend. The court or clerk shall appoint a
discreet and competent attorney at law as guardian ad litem for
an infant, incompetent person, or convict not otherwise
represented in an action, or the court shall make such other
order as it deems proper for the protection of any person under
disability.Footnote: 8
W. Va. Code 56-4-10 (1923) also provides that if the guardian ad litem renders
substantial service to the estate of the infant, reasonable compensation and actual costs may
be awarded out of the estate. "When, in any case, the court or judge is satisfied that the
guardian ad litem has rendered substantial service to the estate of an infant, or insane
defendant, it may allow him reasonable compensation therefor, and his actual expenses, if
any, to be paid out of the estate of such defendant. (Emphasis added.)"Footnote: 9
Because of the paternity aspects of this case, this Court questions whether a
contingency fee was proper at all, since a simple blood test is generally dispositive of the
issue. However, since the blood tests here were not totally determinative of paternity in this
case as a result of problems with the chain of custody, we do not decide this issue at this
time. Nevertheless, we disfavor contingency fees in paternity actions and note that some
jurisdictions have determined that contingency fees are inappropriate in paternity actions
because the plaintiff is seeking to establish a familial relationship. See Mason v. Reiter, 564 So. 2d 142, 146 (Fla. App. 1990) (relying on Rules Regulating Florida Bar 4-1.5(F)(3)(a),
prohibiting contingency fees in family law proceedings, the court held that "[a] paternity
action determines whether a familial relationship exists and is, therefore, a domestic relations
proceeding"); Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, 23, review denied, 318 N.C.
414, 349 S.E.2d 593 (1986)( holding that contingency fees are not available in paternity
cases because child support recovery is "designed to provide support for a minor over a
period of years"); see also Wis. Stat. Ann. Sup. Ct. R. 20:1.5 (1995) (providing that attorney
shall not enter contingent fee arrangement for any action affecting the family, including
paternity determination actions). Footnote: 10
While we conclude that based upon the fact that Mr. Scales was dismissed as the
attorney of record and therefore, attorney fees may only be awarded on a quantiam merit
basis, we note that some jurisdictions have determined that neither a minor nor the reviewing
court is bound by a fee agreement that the minor has entered into. See Sunnyland
Contracting Co. v. Davis, 221 Miss. 744, 75 So. 2d 638 (1954); Scolavino v. State, 190 Misc.
548, 74 N.Y.S.2d 573 (N.Y. Ct. Cl. 1947). However, these courts were not willing to
deprive the attorneys of their fees where they have provided valuable services to the minor,
instead awarding reasonable attorneys' fees. See id.
Upon remand, the determination of reasonable attorney's fees should not result in an award to Mr. Scales of a fee greater than he would be contractually entitled to receive under the contingent fee agreement. See Johnson v. Georgia Highway Express, Inc., 448 F.2d 714 (5th Cir. 1994). We are not establishing a per se rule that a contingent-fee contract imposes an automatic ceiling on an award of attorney's fees. Because we have adopted the factors expressed in Johnson and Rule 1.5(a) of the Rules of Professional Conduct (see supra section IV), this question will be addressed on a case by case basis.Footnote: 11 See section III discussing the predicates necessary for a court to imply a contract for legal services with an infant and the additional requirements that the contract be fair and reasonable at the time it was entered and that the fee contract be fair in relation to the services needed and performed.Footnote: 12 The March 18, 1991 letter from the estate's lawyer to Mr. Scales began by saying "the Executrix of the estate of Richard Ware, namely Vel Anne Dodson, will acknowledge the paternity of Richard Ware for the child of Linda Statler." The March 18, 1991 letter contained a blank line to indicate the amount of an initial distribution. The estate and Mr. Scales agree that $28,121.57 was the amount of the initial distribution to Ms. Statler and it was made at a later date. The letter also indicated the resolution of the paternity issue depended upon the blood tests.Footnote: 13 According to the itemized list of services provided by Mr. Scales, he spend a total of 31.75 hours on this case. In his brief he maintains that 24 hours of service were provided after the March 18, 1991 letter. The itemized list indicates that 8.4 hours of service were provided through March 16, 1991. Footnote: 14 See supra pp. 16-17 discussing why the contingent fee agreement is not appropriate in this case and recovery is limited to quantum meruit.
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