August 12, 2010

Is Expert Testimony Necessary for Attorney’s Fees Charging Lien?

The issue of whether the trial court erred in denying our client’s motion for attorney’s fees based on a charging lien merely because our client did not call an independent expert witness to testify concerning the reasonableness of the fees has been certified to the Florida Supreme Court.

Our client, an attorney, represented the Former Wife in a dissolution of marriage proceeding. Our client and the Former Wife entered into a retainer agreement which provided for an initial non-refundable retainer, an hourly rate for attorney and paralegal time, and a lien for monies due under the agreement. The agreement also required the Former Wife to notify our client, in writing, within thirty days, if there was an objection to the fees charged. The Former Wife paid $48,268 of the total billed, leaving a balance of $57,785.28. The Former Wife did not object in writing to the fees charged. In the dissolution action, our client filed a Notice of Charging Lien, a Corrected Motion for Entry of Final Judgment Adjudicating Charging Lien and for Entry of a Money Judgment, and a Motion to Withdraw. The trial court granted the Motion to Withdraw, held a final hearing of the dissolution, and heard our client’s attorney’s fees motion. Although the trial court received into evidence the retainer agreement, the complete billing history, and the Notice of Charging Lien, the trial court denied our client’s motion citing to the missing testimony from an independent expert witness concerning the reasonableness of the fees.

The Fourth District Court of Appeal reluctantly affirmed the trial court’s decision, but certified the question to the Florida Supreme Court as to whether independent expert testimony was necessary. The Fourth District Court of Appeal noted that “[t]here is little reason to simply increase litigation costs by requiring another lawyer to testify as an expert. After all, each party usually chooses a lawyer friend . . . [, and] [t]he trial court is ultimately left to decide the reasonableness of the rate charged and time expended, and then to tax the cost of the expert witness against the losing party.”