The Motion for Attorney Fees: What is Reasonable?

After a review of attorney fees in the landlord - tenant ("LL/T") arena, it was clear that neither judges nor attorneys are really clear as to what is a reasonable fee or not. It's almost as if there is a gut instinct about what is fair and what is not. The result is that either attorneys are not being paid a fair wage for their work, or the landlord is being overcharged. Neither is a good thing.

An informal poll of attorneys indicated that I was worth anywhere from $175 - $250 per hour. Surprise, surprise: the attorneys who represent landlord downplayed my worth, while the attorneys who represent tenants increased my value. So what is the answer? At the time of this writing, I am calculated to be worth $241.34 per hour.

Whoa, Whoa, Whoa... How Did You Arrive at Such an Exact Figure?

Good question. But before I get to that figure let's go over what is happening in the marketplace. The landlord - tenant statutes grant attorney fees to the prevailing party. This is the flip side to the landlord favorable statutes. If a tenant is intelligent enough to grab an attorney and that attorney prevails, the landlord is looking at a financial thumping for messing up. On the other side, if the landlord's attorney wins the chances of regaining money from the tenant is pretty negligible because... well let's face it, a lot of tenants cannot afford a mortgage, much less an attorney bill.

In the beginning, not being familiar with the worth of attorneys and not understanding where these figures came from I did what most newly minted attorneys do, I looked it up and discovered several sources which discussed what a reasonable fee was but either didn't really give a good reason for how they calculated it or what it actually should be (in the form of a convenient chart or formula I could work with). Fla. R. Pro. Conduct 4-1.5 for example outlines "factors" to be considered in determining reasonable fees and costs.

Factors like, "the nature and length of the professional relationship with the client." Really? How does that come into play? If I represent my wife, does the cost go up (because I'll never hear the end of it if I lose) or down (because I have a personal incentive to win)? If I have had the client for years, does it go up or down? If the client is an ex-girlfriend, does the cost go up or down? What if it's my dentist? Accountant? Pharmacist? What about the staff of my favorite restaurant who know my family and I by first name?

The rule goes on to say that "[i]n determining a reasonable fee, the time devoted to the  representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in this rule should be considered, and may be applied, in justification of a fee higher or lower than that which would result from application of only the time and rate factors." Well... I don't know about you, but that cleared it up.

Unsatisfied, I decided there has got to be an easier way, based on empirical methods, to calculate the attorney fees in LL/T matters. So yeah, damn that science background of mine, because here is comes...

Known Orders and Illogical Curves

When I began this study I decided to obtain as many orders detailing the award of attorney fees and see what the data would be like. I was pleasantly surprised because the awards listed hours worked, the worth of the attorney (in $ / hr), years of experience, expert witness fees sometimes, and contingency fee multipliers (which, by the way, is now between 1.5-3 depending on difficulty; but that's another post). Just with the years of experience and hourly values I could put together a fairly decent ball park estimate.

With this kind of data, I should be able to approximate a math formula so that I could calculate my own worth. I was overjoyed, until I saw this:

What is this? Attorneys with 5-7 years of experience making more per hour than attorneys with around 30 years of experience? These were all within the past five years, and most of the data points were between 2012-13. This curvy... curve thing, while a formula, makes no sense.

The problem is that a reasonable attorney fee can only go so high, and any higher it obviously becomes unreasonable. Also, whatever that limit is, anything below it is more than reasonable. Attorneys out there are underpricing themselves, likely in an attempt to assure the judge that their rates are indeed reasonable. But why should an attorney cut him or herself short?

What Type of Curve Should Be Used?

That is a really good question. I settled on a linear function because a linear function would allow the profession to up their worth at certain levels of experience without drastically affecting the remainder of the curve, or giving ridiculous results over time. So if a 1 year attorney was getting $200 and then an order comes out giving that attorney $220, the new standard is $220 and only slightly ups the rates between 1 year and 15-20 years of experience.

Imagine a curve that curves upward from year one and flattens out around 15 years at $400 per hour. Over time, as orders come out giving more worth to beginner attorneys, the experienced attorneys will not progress and soon a flat line will emerge. This would mean that unless experience attorneys are increasing their worth in a field of practice as regularly as young attorneys are, soon a flat line will be observed. Then it will not matter if you are starting out or about to retire, you are worth $400. That hardly seems fair for the extremely experienced attorneys out there.

Next, imagine another curve that starts flat and ramps upward instead. While this may seem grand (and I certainly would appreciate it in 1-2 decades) the curve never stops and the "reasonable" rate for experienced attorneys would certainly be cringe-worthy. While at 15 years an attorney may be worth $400 per hour, soon after that attorney would be worth $500, $1000, $15000, $1,000,000 per hour. Such results are absurd and certainly not what is intended.

Eliminating the Orders Given to Attorneys Who Undervalue Themselves

Next, the values which are obviously undervalued are removed from the dataset, meaning: 1. any order awarding a more experienced attorney less hourly then an attorney with less experience; and 2. any order awarding less hourly to an attorney where another attorney of roughly equivalent experience was awarded more. This is not to say that the other orders were unreasonable, but the purpose of this exercise is to determine the upper limit of attorney fees that should be awarded.

When these orders were eliminated what emerged was a roughly linear trend for attorneys between 4-15 years of experience.

This is really good. Although I initially wanted a linear function it appears that the seemingly random logic of the orders giving attorney fees was that roller-coaster looking curve above, when everything undervalued is extracted what appears is a pretty decent function.

So You Look on the Graph and See What You're Worth?

Yup. Or you can plug your experience (in years) into the following formula (current as of 11/5/2013):

W(y) = (125y + 2525)/11

where W is your worth,

y is your experience in years, and

A is for how awesome this is!

Like all blog entries dealing in the mathematics of law, an example is required:

I've been practicing in landlord - tenant matters for 1.038356164 years (that's so ridiculously precise)

W(1.038356164) = (125*1.038356164 + 2525) / 11

W(1.038356164) = (129.7945205 + 2525) / 11

W(1.038356164) = 2654.7945205 / 11

W = $241.34

And that is how I got such a precise calculation, to answer your earlier question. In other words, I calculate my going rate based on the years I've been practicing measured in days. This means I get regular raises and my reasonable rate is always bumping up against the line and never falling behind where I should be. Tomorrow I get to celebrate when my going rate goes up to $241.35, joy!

For those of you who hate math, you're welcome:

• 0 years = $229.55
• 1 years = $240.91
• 2 years = $252.27
• 3 years = $263.64
• 4 years = $275.00
• 5 years = $286.36
• 6 years = $297.73
• 7 years = $309.09
• 8 years = $320.45
• 9 years = $331.82
• 10 years = $343.18
• 11 years = $354.55
• 12 years = $365.91
• 13 years = $377.27
• 14 years = $388.64
• 15 years = $400.00

Beyond that we have no good data, but to project:

• 16 years = $411.36
• 17 years = $422.73
• 18 years = $434.09
• 19 years = $445.45
• 20 years = $456.82
• 21 years = $468.18
• 22 years = $479.55
• 23 years = $490.91
• 24 years = $502.27
• 25 years = $513.64
• 26 years = $525.00
• 27 years = $536.36
• 28 years = $547.73
• 29 years = $559.09
• 30 years = $570.45

There you have it, what you're worth in Florida's market for landlord - tenant matters. So the question now is this, do you have an order awarding attorney fees in Florida? If so, send it over and I'll include it in the data if it isn't already included which may make things a little more accurate. If there is a change, it will be reflected in this blog.

If you are in need of an expert in attorney fees in a landlord - tenant matter, don't get your briefs in a bunch, give me a call. I'll be happy to review your file, sign an affidavit, and appear in court for you if your file is in order. TTFN.

The Florida Bar Fee Arbitration Program: When Attorney-Client Relations Go South

Often, the attorney-client relationship is pretty tame. The issues to the client begin as subjectively major and once an attorney comes in, turns into an objectionably minor problem. The attorney helps to solve the problem for the client and both part ways. Hopefully, if the attorney in question did a really good job a continuous relationship begins.

But every once in a while (once so far for me), a client is so utterly disappointed with the outcome that he or she will complain to the Florida Bar and ask for their money back. This mostly happens when, for whatever reason, the case is lost. When such a complaint is made against an attorney, it is referred to the Florida Bar Fee Arbitration group.

It should be understood that there is no requirement for an attorney to agree to fee arbitration, although apparently there is an ethical requirement to strongly consider it. So when I ran across such a client, and the fee arbitration request came in, I ultimately decided to agree for two reasons:

The first was because I wanted to have the complaint heard by a third party neutral. Being a new attorney, it was important to me to find out if I did anything wrong. The second, I wanted to understand the process a little better and try to pass that experience on to other attorneys considering accepting an invitation: which I recommend.

The Facts: Briefly

It was a basic eviction case. The tenants had complaints about the home and issued a 7 day notice with intent to withhold. The landlord filed an eviction complaint in retaliation. I accepted the tenants' request to defend based on two meetings I had them, and submitted an answer to the complaint. Pretty cookie-cutter stuff at that time.

Only later did I find out that one of the tenants had engaged in acts against the landlord which were questionable at best. Also, upon deeper investigation of the facts almost all of the defenses needed to be withdrawn, leaving the defendant... well, practically defenseless. The case, which looked great on the surface, evolved into something quite flimsy. It was time to settle and mitigate any damages.

Luckily, the landlord was amicable to a swift settlement and what was finally agreed to ended up losing my client very little. The outcome had it proceeded to trial would have been financially devastating to my client. All in all, I walked away quite happy my client didn't get crushed under attorney fees, court costs, and moving costs.

My Clients' Point of View

As my clients were moving, and agitation at not having their day in court started to build up. The case was not yet closed when my clients called and emailed and threatened to report me to the Florida Bar. I sent them the website to the Florida Bar and promptly informed them that I was going to withdraw. The other attorney did not object. 

To my clients, I was the attorney who failed them. They believed I was unwilling to confront the other attorney, go to trial, and gave up on them. No doubt as they finished performing their end of the settlement agreement they had grown to resent me, and the experience probably slightly compounded the image problem attorneys have with the public (but that's another entry in this blog.)

My Point of View

From my point of view, I had protected my clients from exposing themselves to a losing eviction hearing. I kept their mistakes out of the public record, kept them from losing a lot more money in the long run, and got them out of the situation they had found themselves in. The judge would have (at the very least) frowned at me for bringing them before him. I would not have blamed him either. As an attorney, the requirement to look after my clients' best interests required that I advise them that this minor loss in the short term was acceptable compared to the major loss in the long term.

Then the fee arbitration process started:

The Invitation to Arbitrate

Shortly after my retainer was due, I received in the mail a letter putting me on notice that my client had filed a complaint against me and wanted to arbitrate my fees. I looked up whether I was required to or not, although I had a feeling it was voluntary based on the form. I then found this in the ethical rules "Since the fee arbitration rule (chapter 14) has been established by the bar to provide a procedure for resolution of fee disputes, the lawyer should conscientiously consider submitting to it."

I gave it some serious thought. I believed it would be a learning experience. I also recognized that although I believed I did nothing wrong, perhaps a more experienced arbitrator would think otherwise. It was important that I found out now if I was making an error before I continued my career.

I also thought that perhaps it would have some type of cathartic effect upon my clients to have their grievances heard out somewhere. They had gone through some fairly emotional times and lost a case they believed (and probably still believe) was a sure winner. Their anger towards me certainly wasn't helping I am sure.

Finally I thought of the irritation I was personally feeling towards them. I did the job, got them out of trouble, and thereafter became their new focus of attack. Why should I submit to arbitration? I was, after all, entitled to my fee. It was that attorney arrogance rearing it's ugly head like it sometimes does. 

I eventually signed the agreement and sent an outline of my side of the case (the clients sent their point of view initially) to be forwarded to the assigned arbitrator. I brought out my case folder and gathered the evidence I believed would be pertinent to winning my argument.

Silence... and then...

I got the letter in the mail. The case was assigned to an arbitrator close by. There was a date, a place, and a time. I marked it on my calendar and reviewed all the evidence for the case. With very little, I believed I had everything I needed to prove I was entitled to my fee:

• The retainer agreement;
• The evidence as to why my client would have lost;
• Email messages approving a settlement approach;
• A signed approval to settle on certain terms;
• Another email agreeing to the terms I arrived at with the other attorney; and
• Further emails which showed why the case was going to be lost had it proceeded to trial.

I taped it up in a folder, which felt quite thin and insubstantial. I went about my business as I waited for the hearing date.

The Hearing

That morning I got up and reviewed my thin little folder. As the time for the hearing approached, I headed out to the court house where it was to be held. I was a bit nervous, but still pretty confident. When I arrived I was worried I was going to be late. I wondered if they retained an attorney to represent them. There were rains, traffic was heavy because of it, and I elected to take the back roads... which still almost had me arriving late. It was sort of embarrassing. I was never late for a court house function for any of my clients, and here I was, about to arrive late to defend myself.

My former clients were already there and I arrived with a few minutes to spare. Luckily for me, the arbitrator was caught in the same traffic and was late himself. It gave me a chance to go over my case for the last time. He looked to be in a good mood when he arrived, and even cracked a joke at his own expense.

We all sat and were sworn in. The arbitrator started by allowing me to open. I stayed on topic, presenting fact after fact as the arbitrator guided the hearing. He completely destroyed my well thought out plan for what should be presented first, second, and so on... apparently he had his own ideas. Since I had never been to arbitration before, I was grateful he was directing us.

He then asked my clients to present their case. They had a mountain of paperwork, folders, tape recordings, emails, etc. Their emotions, so familiar from a few months back, bubbled up very quickly. They accused me of letting them down, disappointing them, caving in when faced with another attorney, etc. They compared their plight to the Zimmerman trial, attacked the landlord, and the arbitrator patiently struggled to keep them focused as they tried to explain their interpretation of the law. While they vented I took notes and remained silent.

I rebutted a few points and they ended up admitting my strategy in the case worked out for them later on (although it was poorly executed without an attorney), and I finally rested my case. Visibly frustrated, and likely thinking the entire system was rigged against them, they followed suit. The arbitrator had attempted to explain to them that we (collectively), as attorneys, had certain ethical obligations. That sometimes a fight is started but cannot be won. He spoke about buyer's remorse. He mentioned that despite it's imperfections, we had a great justice system. I do not believed he convinced them.

After all the evidence was given, he announced he would review the case and issue a ruling in a few days. Great I thought, more waiting. My former clients seemed frustrated. That cathartic effect I hoped they would experience seemed elusive. 

The Judgment

A little while after the hearing a letter appeared in my P.O. Box from the arbitrator. It was a detailed list of the facts presented and the arbitrator's opinion. I won. I felt vindicated that I had not acted improperly. 

Still, I think back on my former clients every once in a while. How did I lose control of the situation? Did I ever have control to begin with? It certainly has changed how I vet my clients before accepting employment. I still enjoy helping tenants fight oppressive landlords, but in this case I think that perhaps I was so focused on the landlord as a target that I had missed the shortcomings of my clients. My professor once told me these situations are why it's called the "practice" of law, because it takes practice.

Would I Recommend the Program?

Yes. It is an opportunity for clients to air their grievances. Even if those grievances are not founded on any legal theory, running a law firm is (at least partly) an exercise in customer satisfaction. The fact that one is brought before a fee arbitration hearing is proof positive the client was not satisfied. Like all businesses, satisfying all of your customers is not always possible. But from the failures, lessons can certainly be extracted, improvements implemented to avoid similar problems in the future, and of course a nice blog entry can be drafted for others to read and learn from your experience.

The Florida Bar Fee Arbitration program is a convenient and well intended program. Like other aspects of the law, it is likely not perfect. But I highly recommend every attorney in Florida experiencing such complaints from a client strongly consider this avenue to resolve the dispute. If this happens to me again (and I hope it does not), I will certainly avail myself of its services.

If you are the target of an irritated client and would like to go over what is going to happen, call me or email me. I'll be happy to speak with you.

Ambulance Chasing By Proxy

The Basics of the Florida Bar's Business Card Rules

As I set about the front work of creating my law firm, I decided I needed business cards to give to my clients in their client packet. This would allow them to 1) find my contact information quickly, 2) take my information and place it in their cell, and 3) ultimately use my card to refer my firm to other people. As usual, I scoured the Florida Bar website for opinions and commentary on how to properly create a business card. Here is what I found, and it may surprise you.

Leaving Stacks of Business Cards at a Business

Chairman Holcomb back in 1963 opined that it would be highly unprofessional for an attorney to leave a stack of business cards with a banker (and presumably any other business) for the purposes of referring business. Professional Ethics of the Florida Bar, Opinion 62-69 (1963, Updated 2011). I found this to be strange, since there were practical workarounds (more on that later) to this opinion on "Canon 27".

Don't get me wrong, I agree in part with the idea. I always found it bizarre to go into a barbershop and find stacks of business cards advertising other services just laying around. It is not how I would like to promote my business. But I find the practice to be similar to a billboard on the side of I-4, which simply tells me that a particular firm exists and wants my business. Business cards are simply small billboards in my mind. I'm not a big fan of billboards either but they are a fact of life.

But the Chairman is consistent, "We believe that it would be most improper for an attorney to give his professional cards to anyone for the purpose of referring business, although in individual cases we find no objection." (Emphasis added.) Id. So in other words, handing out stacks of business cards to a person in a business is improper, but handing out one card at a time is okay even if that card is meant to draw in a referral.

What About Giving to Individuals?

Giving out a business card to individual clients, or people who simply ask is apparently still okay. (Phew.) One should avoid handing out stacks of cards to friendly clients, close friends, family, etc. They would violate the rule by acting as the ambulance chaser by proxy, so that makes sense. Id.

It is a reasonable expectation that a person in possession of your card may refer somebody to your firm. It is the secondary purpose of the business card (the first being a convenient collection of your contact information.) But let us be realistic, attorneys want more clients and a referral here and there doesn't hurt. Maximizing that referral base keeps us busy.

Let's face it: the business card has hardly evolved since the 60s. They are more artistic and flashy, sure... but ultimately they are small pieces of paper with your business information on them. They are also slowly dying off considering new technologies like phone bumping (a 21st century handshake?) Now networking is more a function of personal meetings and digital advertising. LinkedIn, Facebook, and G+ inter alia is fast becoming the more important media to spread news about your business around.

QR codes are another fast growing segment. I include them in my correspondence for my more tech-savvy clients. I am pretty skeptical that they will go mainstream for long. They are subjectively speaking... ugly. For example: here is my profile from LinkedIn.

Self-promotion is always a good thing. But there is one type of self-promotion that the Florida Bar has never opined against (except maybe the QR thing), and that's being a great lawyer.

The Workarounds I Promised

Nothing gets more referrals than great legal work. Winning a big case for a client will up your chances for a referral by... well, I don't have the numbers so I'll say a bajillion percent, give or take. Give back to the community, be involved, take on the hard cases which reek of injustice. You may not win, but everybody loves a good underdog.

That banker I spoke about earlier is constantly asking you for your card because 1) he or she has either forgotten to record your information on a smart phone, or 2) you're not that particularly memorable. Become memorable, and that banker (who talks with a lot of clients) will come across bad situations that may need your services. He or she will then say, "Hey wait, I know a really great attorney, let me get my cell."

Those words will beat any flashy business card hands down.

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Jimmy Davis is a practicing attorney in the Central Florida area. He practices in many areas of law, but is most interested in family and business law. He is particularly interested in the aftermath of Constitutional and Florida Constitutional rulings and how they help or hinder his clients' interests. He is available for free consultations on a variety of legal topics. 

Visit www.lawofficesofjimmyallendavis.com for more information.