17C MAPRAC § 61.1

17C Mass. Prac., Prima Facie Case § 61.1 (5th ed.)

Massachusetts Practice Series TM

Current through the 2011 Pocket Parts

Prima Facie Case

Richard W. Bishop[FNa0]

Part

IV. Miscellaneous

Chapter

61. Attorney Fees

§ 61. 1. In general

West's Key Number Digest

West's Key Number Digest, Costs

194.10 to 194.50

Legal Encyclopedias

C.J.S., Costs §§ 125 to 132

It is a fundamental rule of common law that each party to an action must bear his own costs, including his attorney's fees.[FN1]

There are, however, four traditional, but limited, situations in which an opposing party may be required to pay the reasonable attorney's fees of the other party. They are: (1) as costs in accordance with specific statutory provisions or court rules,[FN2] (2) as damages in some circumstances[FN3], (3) in accordance with statutory provisions under which the allowance may not be clearly categorized or may not be categorized at all,[FN4] and finally, (4) pursuant to a valid contractual provision or stipulation.[FN5]

It is with this subject, the recovery of attorney's fees from the opposing party, that the succeeding sections of this chapter are involved.

Before considering some of the more common examples in which attorney's fees may be recovered, it should be noted that because the award of fees is essentially on a quantum meruit basis,[FN6] the standard of valuation to be applied is well settled. “In determining what is a fair and reasonable charge to be made by an attorney for his services many considerations are pertinent, including (1) the ability and reputation of the attorney, (2) the demand for his services by others, (3) the amount and importance of the matter involved, (4) the time spent, (5) the prices usually charged for similar services by other attorneys in the same neighborhood, (6) the amount of money or the value of the property affected by controversy, and (7) the results secured. Neither the time spent nor any other single factor is necessarily decisive of what is to be considered as a fair and reasonable charge for such services. The judge who presided at the trial and heard the testimony of the witnesses was in a position to decide the credence and weight to be given to their testimony.”[FN7]

It is also settled that where payments are to be made out of the property of litigants to or for the benefit of counsel who may not have been employed by those whose estates are thus diminished, the standard is not the same as that applied in an action by an attorney against a client with whom he has voluntary contractual relations.[FN8] Fees in such cases are awarded on strictly conservative principles.[FN9] It has often been stated that the test commonly employed is the compensation paid to public officers for services of a similar character.[FN10] Further, the test is not what the attorney usually charges, but is based upon the objective worth of the services rendered.[FN11]

A statutory fee award should not cover any effort expended by the attorney on independent claims which happen to be joined with statutory claims in a single proceeding.[FN12]

The appellate court may award attorney's fees on appeal when a statute provides for the payment of reasonable attorney's fees, but the award by the trial judge under such a statute must be limited to the trial proceedings unless the appellate court has directed otherwise.[FN13]

For the most part, whether to award attorney's fees rests within the sound discretion of the court and, if exercised, then to determine the amount of the award.[FN14]

The trial judge is not required to make a factor by factor analysis in findings and rulings in an attorney's fee action, but it has been pointed out that such an analysis is helpful to the appellate court in lending support to the judge's conclusions.[FN15]

In proving the amount of attorney's fees, contemporaneous time records, while not absolutely essential where there is other reliable evidence to support the claim, are very important. Proof of the time spent by means of reconstructed records, except in extraordinary circumstances, will call for a substantial reduction in any award or, in egregious cases, disallowance.[FN16]

[FNa0] Of The Massachusetts Bar.

[FN1] Fuss v. Fuss, 372 Mass. 64, 368 N.E.2d 271 (1977); Broadhurst v. Director of the Division of Employment Security, 373 Mass. 720, 369 N.E.2d 1018 (1977); MacLachlan v. Brotherhood Oil Corporation, 10 Mass.App.Ct. 811, 404 N.E.2d 1272 (1980).

See also Creed v. Apog, 377 Mass. 522, 386 N.E.2d 1273 (1979): “But this generality has many exceptions, and must be tempered by the policies expressed in Mass.R.Civ.P. 54(d), and G.L. c. 261, §§ 1 and 13. It has never been applied to costs arising from prevailing parties' efforts to dissolve attachments or obtain surety or supersedeas bonds.”

Waldman v. American Honda Motor Co., Inc., 31 Mass.App.Ct. 451, 579 N.E.2d 480 (1991), review granted 411 Mass. 1104, 583 N.E.2d 250 (1991): “It is often said that the ‘usual rule in Massachusetts is that the litigant must bear his own expenses’.” (Quoting from Linthicum v. Archambault, 379 Mass. 381, 389, 398 N.E.2d 482, 488 (1979).) The court held, however, that the trial court did not abuse its discretion in taxing expert witness fees as ordinary costs to an unsuccessful plaintiff in a products liability case. Upon further appellate review, however, the Supreme Judicial Court again quoted Linthicum, calling it “The American Rule of Massachusetts” that a litigant should bear his own expenses and, reversing the Appeals Court, held that the statutory limitation on the amount of taxable witness fees established by M.G.L.A. c. 262, § 29, applied to all witnesses, including experts. It was further held that the trial court could not award a defendant in a products liability case deposition costs without holding a hearing and finding that the deposition was reasonably necessary. Waldman v. American Honda Motor Co., Inc., 413 Mass. 320, 597 N.E.2d 404 (1992).

Latimore v. Commonwealth, 417 Mass. 805, 633 N.E.2d 396 (1994).

The rule that a litigant must be liable for his own attorney fees has become known as the “American rule.” See, for example, Krock v. Krock, 46 Mass.App.Ct. 528, 707 N.E.2d 839 (1999).

Under the “American Rule,” litigants bear their own expenses unless a statute or a contract or other agreement provides otherwise. E. Amanti & Sons, Inc. v. R.C. Griffin, Inc., 53 Mass.App.Ct. 245, 758 N.E.2d 153 (2001).

Franchi v. Stella, 42 Mass.App.Ct. 251, 676 N.E.2d 56 (1997): “Legal fees, Stella says, are not recoverable by a winning party except when a statute specially so provides, as in cases under G.L. c. 93A, or cases which warrant invoking the provisions of G.L. c. 231, § 6F. That statement of what is known as the ‘American Rule’ is correct as far as it goes, see Chartrand v. Riley, 354 Mass. 242, 243–244, 237 N.E.2d 10 (1968), but does not apply when a party's negligence (or other tortious conduct) requires the plaintiff to bring an action against a third party.”

Homeowner's insurance

An exception to the general rule that each party must bear the costs of his own attorney's fees was established by Preferred Mutual Ins. Co. v. Gamache, 426 Mass. 93, 686 N.E.2d 989 (1997) and followed by Rubenstein v. Royal Ins. Co. of America, 44 Mass.App.Ct. 842, 694 N.E.2d 381 (1998), aff'd in part 429 Mass. 355, 708 N.E.2d 639 (1999), both cases holding that an insured under a homeowner's policy was entitled to reasonable attorney's fees and expenses incurred in successfully establishing the insurer's duty to defend.

The Gamache exception to the American rule is limited to litigation against an insurer over the duty to defend. Wilkinson v. Citation Ins. Co., 447 Mass. 663, 856 N.E.2d 829 (2006). The Supreme Judicial Court refused to expand the rule to a claim for attorney fees when the insured established liability against an insurer on its homeowner's policy for a fire loss. “We refuse to expand the Gamache exception beyond the duty to defend. Consequently, although we affirm summary judgment granted to the plaintiff insureds on the issue of coverage, we reverse the award of attorney fees to them.”

In John T. Callahan & Sons v. Worcester Ins. Co., 453 Mass. 447, 902 N.E.2d 923 (2009), the Supreme Judicial Court concluded that the Gamache exception to the American rule does not extend to allow an insurer to receive attorney's fees and expenses incurred in a successful action brought to establish another insurer's duty to defend a common insured.

Liens

M.G.L.A. c. 221, § 50 is the attorney's lien statute. It provides that from the authorized commencement of an action in any court, the attorney who appears for a client shall have a lien for his reasonable fees and expenses upon his client's cause of action and that upon request of the client or of the attorney, the court in which the proceeding is pending may determine and enforce the lien.

Under the statute, however, the attorney has a lien only upon his client's cause of action and the proceeds derived from it, and the lien may only be enforced to the extent of the judgment in favor of his client. Collins v. Town of Webster, 25 Mass.App.Ct. 745, 522 N.E.2d 12 (1988), review denied 402 Mass. 1104, 525 N.E.2d 678 (1988).

For an interesting study of the common law, case law and statutory law of an attorney's lien for his fees, see The Attorney's Lien in Massachusetts, by John S. McCann, Massachusetts Law Review, Vol. 69, Number 2, p. 68 (June 1984).

See also § 61.24.

Class actions

Compare Coggins v. New England Patriots Football Club, Inc., 406 Mass. 666, 550 N.E.2d 141 (1990), a class action, in which attorneys' fees were allowed to be paid from a settlement fund. The court stated: “Where a party ‘has, at his or her own expense, been successful in creating, preserving or enlarging a fund in which other parties have a rightful share,’ a court may order the payment of attorneys' fees and expenses out of the fund as part of a damages award …. Such ‘an allowance is discretionary and not a matter of right’.” (Quoting from Pearson v. Board of Health of Chicopee, 402 Mass. 797, 801 n. 3, 525 N.E.2d 400, 402 n. 3 (1988).)

Stockholder's derivative action

A plaintiff in a stockholder's derivative action is entitled to an award of counsel fees out of whatever proceeds of the action the corporation receives. Martin v. F.S. Payne Co., 409 Mass. 753, 569 N.E.2d 808 (1991).

Illustrative cases

In the following cases recovery of attorney's fees has been denied:

Legal expenses incurred in a successful suit to obtain a conveyance of land as directed by statute, Wachusett Regional School District Committee v. Erickson, 354 Mass. 768, 238 N.E.2d 369 (1968); successful defendant's counsel fees in a suit for specific performance, Gallinaro v. Fitzpatrick, 359 Mass. 6, 267 N.E.2d 649 (1971); counsel fees for prevailing party in an equity suit brought in the probate court, United Tool & Industrial Supply Co. v. Torrisi, 359 Mass. 197, 268 N.E.2d 837 (1971); counsel fees of a successful litigant in a Superior Court equity proceeding, George v. Coolidge Bank & Trust Co., 360 Mass. 635, 277 N.E.2d 278 (1971); counsel fees in a declaratory judgment proceeding, Ellis v. Board of Selectmen of Barnstable, 361 Mass. 794, 282 N.E.2d 637 (1972); counsel fees in an arbitration award, Doherty v. School Committee of Boston, 363 Mass. 885, 297 N.E.2d 494 (1973).

M.G.L.A. c. 111, § 70A gives a health maintenance organization a lien on benefits received by a person to whom the HMO has furnished services. The lien statute is silent, however, as to attorney's fees and costs, and it has been determined that the HMO lienholder need not pay any portion of the attorney fees or costs incurred by its member in obtaining those benefits. Pierce v. Christmas Tree Shops, Inc., 429 Mass. 91, 706 N.E.2d 633 (1999).

[FN2] Boynton v. Tarbell, 272 Mass. 142, 172 N.E. 340 (1930) holding that costs go to a party in the litigation, not to the attorney. See also Commissioner of Insurance v. Massachusetts Accident Co., 318 Mass. 238, 61 N.E.2d 137 (1945).

See Commonwealth v. Gonsalves, 432 Mass. 613, 739 N.E.2d 1100 (2000): “Attorney's fees and costs may be authorized only by court rule or statute.”

“Under the common-law American rule, which is the rule in Massachusetts, litigants are required to bear their own litigation expenses unless ‘a statute permits awards of costs … or … a valid contract or stipulation provides for costs, or … rules concerning damages permit recovery of costs.’ Rule 54(d) provides, in pertinent part, that, ‘[e]xcept when express provision therefor is made either in a statute of the Commonwealth or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs ….’ This rule is consistent with G.L. c. 261, § 1, which provides that ‘[i]n civil actions the prevailing party shall recover his costs, except as otherwise provided.’ … While both the rule and the statute ‘vest the court with discretion as to whether costs shall be taxed at all,’ … where such costs are permitted, an award of costs is allowable only when based on ‘specific affirmative authority.’ ” Demoulas v. Demoulas, 432 Mass. 43, 732 N.E.2d 875 (2000), quoting from Waldman v. American Honda Motor Co., 413 Mass. 320, 322, 597 N.E.2d 404, 406 (1992), quoting in turn from Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 721–722, 369 N.E.2d 1018, 1019–1020 (1977), and holding that neither Rule 54(d) nor M.G.L.A. c. 261, § 1 authorized reimbursement of over seventy-four thousand dollars in trial transcript costs to the plaintiffs as prevailing parties.

M.G.L.A. c. 21E, § 4A. Even those who are adjudged partially responsible for a release of hazardous materials may recover awards of attorney fees and costs if the statutory conditions are met. Buddy's Inc. v. Town of Saugus, 62 Mass.App.Ct. 256, 816 N.E.2d 134 (2004), holding that a fuel oil deliverer that brought a successful third-party action against the town to recover costs of responding to a release of hazardous materials was not entitled to attorney fees and costs of the action. Deliverer was a “complainant” asserting a third party claim, as opposed to an original “plaintiff”, and the town's liability had to be “reasonably clear” in order for the deliverer to recover, and the town's liability was not.

Statutes

For specific statutes providing for the payment of attorney's fees not covered elsewhere in the text, see:

M.G.L.A. c. 272, § 99(Q) (the eavesdropping statute) which proscribes oral or wire communications from being intercepted when not permitted or authorized by the statute and which violates the personal property or privacy interests of the aggrieved person. The statute also provides for payment of actual and punitive damages. See Crosland v. Horgan, 401 Mass. 271, 516 N.E.2d 147 (1987) in which recovery was denied when a hospital telephone was being used in the ordinary course of the hospital's business and was not, therefore, an “intercepting device.”

M.G.L.A. c. 21E, §§ 4 and 15, Massachusetts Oil and Hazardous Material Release Prevention Act. See also Sanitoy, Inc. v. Ilco Unican Corp., 413 Mass. 627, 602 N.E.2d 193 (1992), holding that a trial court erred in linking a fee award to the percentage of “response” costs recovered. A plaintiff was entitled to recover full amount of its reasonable attorney fees and expert witness fees.

M.G.L.A. c. 258, § 13 requires a municipality that accepts its provisions to indemnify and save harmless its municipal officers, elected or appointed, from personal financial loss and expense including legal fees and costs in an amount not to exceed one million dollars arising out of any claim, demand, suit, or judgment by reason of any act or omission, except intentional violation of civil rights of a person, if the official was acting within the scope of his or her official duties or employment. See also Dugan v. Board of Selectmen of Dartmouth, 413 Mass. 641, 602 N.E.2d 563 (1992), involving legal fees and expenses of a police officer incurred in defending a malicious prosecution tort claim.

M.G.L.A. c. 258, § 13 “does not authorize a town to reimburse a municipal officer for legal fees and costs incurred in defending against criminal indictments or ethics charges, regardless of whether he is acquitted or his defense is otherwise successful.” Triplett v. Town of Oxford, 439 Mass. 720, 791 N.E.2d 310 (2003), discussing the history and the legislative intent of the statute.

M.G.L.A. c. 21E, §§ 4, 15. See Martignetti v. Haigh-Farr, Inc., 425 Mass. 294, 680 N.E.2d 1131 (1997), holding that only a party which has not contributed to, or caused, the release of hazardous materials necessitating its response actions may be awarded attorney fees and costs in an action for contribution.

The plaintiff was entitled to damages for repair of its property absent proof that the oil damage to its property was not curable by repairs or remediation, but, absent that proof, it was not entitled to a damage award for diminution in the fair market value of its property under M.G.L.A. c. 21E. Hill v. Metropolitan District Commission, 439 Mass. 266, 787 N.E.2d 526 (2003), also holding that the Commission that owned the property adjacent to the contaminated property was not immune from liability under c. 21E for damage to the property. The Tort Claims Act limitation of liability provision of M.G.L.A. c. 258, § 2 applied only when the Commonwealth took over the site for enforcement or cleanup purposes and caused or contributed to a release or threat of release of contamination. The decision also contains detailed jury instructions concerning “reasonably curable by repairs or remediation.”

See Birbiglia v. St. Vincent Hospital, Inc., 427 Mass. 80, 692 N.E.2d 9 (1998). The charitable immunity statute does not limit the recovery of attorney fees awarded under the wiretap statute (M.G.L.A. c. 272, § 99).

M.G.L.A. c. 21E, § 4. See Black v. Coastal Oil New England, Inc., 45 Mass.App.Ct. 461, 699 N.E.2d 353 (1998), allowing attorney fees for response costs only. Upon appeal after remand of Black, the Supreme Judicial Court held that issue preclusion did not prevent corporation's appeal, that the fees and costs awarded were reasonable, and that the owners were entitled to appellate costs and fees. Black v. Coastal Oil of New England, Inc., 57 Mass.App.Ct. 696, 785 N.E.2d 708 (2003).

M.G.L.A. c. 266, § 37D relating to false impersonation and identity fraud. The statute prohibits a person from using the personal identifying information of another with intent to defraud in order to obtain money, credit, goods, services or anything of value and provides criminal penalties if convicted. It also authorizes the court to order restitution to the victim for financial loss incurred by him or her, including costs incurred in connection with any civil suit or administrative proceeding to satisfy any debt or other obligation incurred by the victim, lost wages, and attorney's fees.

For specific statutes providing for the payment of attorney fees not covered elsewhere in the text, see:

M.G.L.A. c. 149, § 150 (the weekly wage law), “Any person claiming to be aggrieved by a violation of section 148 * * * may * * * institute and prosecute in his own name * * * a civil action for injunctive relief and any damages incurred, including treble damage for any loss of wages and other benefits. An employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of litigation and reasonable attorney fees.” See also Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 831 N.E.2d 304 (2005), holding that an award of treble damages was permitted, but not mandatory.

M.G.L.A. c. 21E, §§ 4, 15. A property owner conducted a necessary and appropriate hazardous waste response action in accordance with the Massachusetts Contingency Plan, and was not responsible for causing the contamination, and thus was entitled to recover litigation costs in an action under the Massachusetts Oil and Hazardous Material Release Prevention Act against a lessee whose manufacturing activities on the property necessitated the cleanup. Bank v. Thermo Elemental, Inc., 451 Mass. 638, 888 N.E.2d 897 (2008).

Court Rules

Mass.R.Crim.P. 15(d), 25(c)(2), and 30(c)(9) allow for reasonable attorney's fees and costs of appeal under the circumstances defined by the rules. The rules were amended to permit attorney's fees to be allowed in the appeal of capital cases under M.G.L.A. c. 278, § 33E (1985) consistent with attorney's fees in other appealed cases.

An order denying payment of attorney fees and costs is final and appealable, and payment of a defendant's attorney fees and costs is mandatory and not discretionary under Mass.R.Crim.P. 15(d) governing interlocutory appeals. Commonwealth v. Lopez, 430 Mass. 244, 717 N.E.2d 254 (1999).

See Commonwealth v. Sparks, 431 Mass. 299, 727 N.E.2d 78 (2000), holding that Mass.R.Crim.P. 15(d) governing payment of fees to a defendant in connection with the Commonwealth's interlocutory appeal did not apply to fees charged by private attorneys retained by court-appointed counsel.

Court rules—Fee generating appointments

Effective in part on July 1, 1999 and in part on January 1, 2000, Supreme Judicial Court Rule 1:07 has been amended and requires the courts to maintain a list of persons eligible for fee generating appointments. As part of the court public records, the clerk must maintain an appointment docket of each fee generating appointment which shall include (a) guardian ad litem; (b) investigator appointed pursuant to M.G.L.A. c. 208, § 16; (c) appraiser for estates estimated to have gross assets in excess of $100,000; (d) commissioner to sell real estate; (e) mediator or conciliator; (f) master or special master; (g) counsel in any civil matter; (h) monitor for the administration of antipsychotic medications; (i) investigator in care and protection proceedings; (j) title examiner; (k) administrator, trustee, guardian, conservator or receiver whose appointment was not prayed for by name in the petition etc.; (l) other fee generating appointments not otherwise excluded. Guardians ad litem to serve process under M.G.L.A. c. 215, § 56B are excluded, as are administrators, guardians, executors etc. unless required by (k) above. Appointments are to be entered on the docket regardless of the anticipated source, in any, of payment to the appointee.

The rule specifies the data to be entered on the docket and requires that payments will not be made until the services have been provided, itemized and certified, and no appointee shall make payment to himself until it has been approved by the court.

Appointments must be made successively from the list unless the judge or other person making the appointment files a written statement of his or her reasons for not doing so. A brief written statement is also required if an appointee is not on the list.

Annual publication of the list becomes effective on July 1, 1999, the remaining portions on January 1, 2000, and after July 1, 2000, no person shall accept reappointment unless he or she has filed a certification that all fee reports for payments received in the previous fiscal year have been filed.

Court rules—Pro bono services

Effective February 1, 1999, Supreme Court Rule 3:07 has been amended by inserting the new Mass.R.Prof.C. 6.1 providing that a lawyer should provide annually at least twenty-five hours of pro bono publico services for the benefit of persons of limited means, or, if unable to do so, is encouraged to contribute to one or more of the organizations that provide support for such legal services. Because the rule is aspirational, failure to provide the services will not subject the lawyer to discipline. See the rule for full details.

[FN3] Sears v. Nahant, 215 Mass. 234, 102 N.E. 491 (1913) holding that courts granting equitable relief may, in some cases under their general powers, allow attorney's fees as an element of damage.

Most often the fees are awarded as an element of damage to a successful litigant, see Goldberg v. Curhan, 332 Mass. 310, 124 N.E.2d 926 (1955) and cases cited, but even in damages to a successful litigant, recovery has been restricted, Harrison v. Textron, Inc., 367 Mass. 540, 328 N.E.2d 838 (1975). See also Chartrand v. Riley, 354 Mass. 242, 237 N.E.2d 10 (1968) overruling numerous earlier cases to the contrary. See Chartrand also for an added list of illustrative cases in which an award of counsel fees as damages has been denied.

See also Hartford Accident & Indemnity Co. v. Casassa, 301 Mass. 246, 16 N.E.2d 860 (1938).

Counsel fees have been awarded, however, in some cases where a defendant's tortious conduct requires the victim of the tort to sue or defend against a third party in order to protect his rights. See, for example, M. F. Roach Company v. Provincetown, 355 Mass. 731, 247 N.E.2d 377 (1969).

[FN4] Commissioner of Insurance v. Massachusetts Accident Co., 318 Mass. 238, 61 N.E.2d 137 (1945).

Federal statutes

In recent years federal statutes authorizing the award of attorney's fees have become more numerous. From time to time they are listed and discussed in Federal Attorney Fee Awards Reporter, published by Law & Business, Inc., Harcourt Brace Jovanovich, 757 Third Avenue, New York, N.Y. 10017.

See also “Comment-1980,” by Harold Brown of the Boston Bar appended to M.G.L.A. c. 93A, § 9 for a detailed discussion and collection of federal cases involving attorney's fees in general and listing more than one hundred and twenty federal statutes authorizing the award of an attorney's fee.

In T & D Video, Inc. v. City of Revere, 450 Mass. 107, 876 N.E.2d 842 (2007), the Court took the opportunity to clarify the Massachusetts procedure for requesting interlocutory appellate fees and costs under 42 U.S.C.A. § 1988(b) and similar Federal fee shifting statutes. See the decision for details. It was emphasized that the clarification applies only to Federal requests. For Massachusetts appeals, see this text, § 61.5 note 4 and Fabre v. Walton, 441 Mass. 9, 802 N.E.2d 1030 (2004).

Publicly funded legal service organizations

When attorney's fees are statutorily authorized, legal service organizations are entitled to receive such awards, but “legal service organizations are not appropriate recipients of fee awards made pursuant to a contractual provision allowing recovery of attorney's fees incurred.” (Emphasis in original.) Lincoln Street Realty Company v. Green, 374 Mass. 630, 373 N.E.2d 1172 (1978).

“[I]f a statute authorizes an award of attorney's fees, an award may be made to a legal services organization.” A.B. v. C.D., 44 Mass.App.Ct. 331, 690 N.E.2d 839 (1998).

[FN5] See Bournewood Hospital, Inc. v. M.C.A.D., 371 Mass. 303, 358 N.E.2d 235 (1976) for discussion.

Prevailing party

In some instances, both contractual and by statute, attorney's fees may be awarded to the “prevailing party.” Customarily, a plaintiff does not “prevail” without obtaining some relief. For a discussion of the term and a collection of authorities, see Bardon Trimount, Inc. v. Guyott, 49 Mass.App.Ct. 764, 732 N.E.2d 916 (2000).

[FN6] Salem Realty Company v. Matera, 10 Mass.App.Ct. 571, 410 N.E.2d 716 (1980), appeal decided 384 Mass. 803, 426 N.E.2d 1160 (1981); Mulhern v. Roach, 20 Mass.App.Ct. 322, 480 N.E.2d 308 (1985), judgment rev'd on other grounds 398 Mass. 18, 494 N.E.2d 1327 (1986).

See also Smith v. Binder, 20 Mass.App.Ct. 21, 477 N.E.2d 606 (1985): “A discharged lawyer who has not rendered substantial performance cannot recover on a contingent fee contract, but may only seek a reasonable fee on a quantum meruit basis.”

[FN7] Cummings v. National Shawmut Bank, 284 Mass. 563, 188 N.E. 489 (1934), quoted with approval in Mulhern v. Roach, 20 Mass.App.Ct. 322, 480 N.E.2d 308 (1985).

Northern Associates, Inc. v. Kiley, 57 Mass.App.Ct. 874, 787 N.E.2d 1078 (2003), quoting again the factors to be considered as stated in Cummings.

Mulhern v. Roach, 398 Mass. 18, 494 N.E.2d 1327 (1986), reversing Mulhern v. Roach, 20 Mass.App.Ct. 322, 480 N.E.2d 308 (1985).

Bertassi v. Allstate Insurance Company, 402 Mass. 366, 522 N.E.2d 949 (1988): “… ordinarily, one of the factors to be considered in an award of attorney's fees is the amount of the over-all recovery.”

In the absence of an agreement between attorney and client, an attorney may charge a fair and reasonable fee for his expenses. But in setting fees, an attorney owes his client a greater duty than that owed under the general law of contracts. Further, as a general proposition, if there is a written agreement and if there is doubt as to its meaning, it is construed against the party that wrote it, and this principle counts double when the drafter is a lawyer writing on his or her own account to a client. Garnick & Scudder, P.C. v. Dolinsky, 45 Mass.App.Ct. 925, 701 N.E.2d 357 (1998).

Massachusetts Rules of Professional Conduct, Rule 1.5(a) provides in relevant part: “The factors to be considered in determining whether a fee is clearly excessive include the following: (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.” See also Commonwealth v. Ennis, 441 Mass. 718, 808 N.E.2d 783 (2004), in which the attorney's fees were substantially reduced.

Siegel v. Berkshire Life Insurance Co., 64 Mass.App.Ct. 698, 835 N.E.2d 288 (2005), quoting the Mulhern and Cummings factors listed in the main volume.

Siegel was revisited in Siegel v. Berkshire Life Ins. Co., 70 Mass. App. Ct. 318, 873 N.E.2d 1202 (2007), holding that an attorney's willingness to defer the payment of his fee until the plaintiff's recovery since the plaintiff had no assets should not devolve to benefit a defendant whose unfair and deceitful actions caused the necessity of legal action for the damages. Although the attorney did not discuss fees with the client while she was in emotional distress and dire financial straits, the evidence supported the conclusion that she agreed to pay her attorney if he obtained recovery in a suit for unfair and deceptive practices, and also that prejudgment interest could be added to the attorney fees awarded as actual damages.

Pro se representation

In a case of first impression, it was determined that a lender was entitled to recover reasonable attorney fees associated with enforcing a judgment for the debt on a promissory note, not just attorney fees associated with obtaining the judgment, since the note allowed recovery for “any” attorney fees incurred to collect the debt. Robbins v. Krock, 73 Mass. App. Ct. 134, 896 N.E.2d 633 (2008), holding that fees incurred by the lender in representing herself were recoverable.

Lodestar awards

An attorney's fee calculated by multiplying the number of hours reasonably spent times a reasonable hourly rate is called a “lodestar” award. Fontaine v. Ebtec Corporation, 415 Mass. 309, 613 N.E.2d 881 (1993).

Borne v. Haverhill Golf & Country Club,. Inc., 58 Mass.App.Ct. 306, 791 N.E.2d 903 (2003), citing Fontaine.

Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 676 N.E.2d 815 (1997). Lodestar award upheld as within judge's discretion.

Berman v. Linnane, 434 Mass. 301, 748 N.E.2d 466 (2001).

The trial court was not required to use lodestar factors when determining reasonable attorney fees where a lease provision allowed an award of reasonable attorney fees and costs to the prevailing party in a dispute under the lease. WHTR Real Estate Ltd. Partnership v. Venture Distributing, Inc., 63 Mass.App.Ct. 229, 825 N.E.2d 105 (2005), holding that the landlord did not breach a lease provision that landlord would not unreasonably withhold consent to a sublease, because the tenant never reached a legally enforceable agreement with a prospective subtenant.

Siegel v. Berkshire Life Insurance Co., 64 Mass.App.Ct. 698, 835 N.E.2d 288 (2005), citing Fontaine (see main volume) with approval.

Restitution of attorney fees

A Probate Court, although a court of limited jurisdiction, has general equity powers (see M.G.L.A. c. 215, § 6) which are broad and flexible and extend to actions necessary to afford any relief in the best interests of a person under its jurisdiction. This includes the power “to correct what has been wrongfully done, such as ordering restitution of monies obtained under the court's statutory authority after the decision has been overturned.” Cox v. Cox, 56 Mass.App.Ct. 864, 780 N.E.2d 951 (2002).

Restitution is an equitable remedy by which a person who has been unjustly enriched at the expense of another is required to repay the injured party. Keller v. O'Brien, 425 Mass. 774, 683 N.E.2d 1026 (1997), holding that a former spouse was not required to repay alimony paid under an erroneous judgment which was paid after the filing of the husband's initial complaint because the wife had no reason to anticipate that she would be required to reimburse the husband and that retroactive application of the new rule would be substantially inequitable to the wife.

In Heron v. Heron, 428 Mass. 537, 703 N.E.2d 712 (1998) the Court remanded the case to the Probate Court for a determination after hearing as to whether equity required the plaintiff to make restitution of all or part of the alimony paid to her, but was silent both as to whom the fee award was to be paid, either to the wife or her lawyer, and as to whether the fee award had been stayed pending appeal. The Probate Court was to take into account whether restitution would so impoverish the wife as to make her a ward of the public.

Neither Keller nor Heron addressed the situation where restitution was demanded from a third party, e.g. a demand for restitution made by one party from the other party's lawyer, when a lower court's decision is reversed on appeal. This question was considered in Cox v. Cox, 56 Mass.App.Ct. 864, 780 N.E.2d 951 (2002), in which it was held that third parties should be separated into two categories, (1) bona fide creditors of the judgment creditor (not liable in restitution) and (2) real parties in interest (liable in restitution). “We also think it sensible, when the third party is an attorney, that the nature of the fee arrangement should be a chief consideration in determining the category into which the third party falls.” The decision quotes Restatement (Third) of Restitution, § 18, comment, and then states: “We are in accord with the Restatement position that a bona fide creditor who in good faith receives payment from the proceeds of a judgment favoring his debtor is not liable in restitution to the person or entity whose payment satisfied the judgment when the judgment is reversed. Because the bona fide creditor is entitled to payment regardless of the judgment's validity, that creditor is not unjustly enriched by retention of the payment after the judgment's reversal.” The Court held that the attorney was a bona fide creditor and not liable in restitution upon reversal of the judgment, but remanded the case in order that the husband could have the opportunity to prove that the payment of attorney fees did not discharge an unconditional, bona fide obligation that the client had to the attorney, or that, if it were found that although the payment did discharge such an obligation, other circumstances existed that made the attorney's retention of the payment unjust.

See, for restitution in criminal cases, this text, § 53.155.

[FN8] First National Bank of Boston v. Brink, 372 Mass. 257, 361 N.E.2d 406 (1977) holding that absent an agreement as to the amount of an attorney's fee, the attorney cannot recover any amount in excess of that which is fair and reasonable.

[FN9] Hayden v. Hayden, 326 Mass. 587, 96 N.E.2d 136 (1950): “The power to award counsel fees in cases of this sort is one of great delicacy and is to be applied with caution.” Pemberton v. Pemberton, 9 Mass.App.Ct. 9, 411 N.E.2d 1305 (1980). In the latter case, the court declined to adopt a more generous attitude. See also Coyne Industrial Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 268 N.E.2d 848 (1971).

Strand v. Hubbard, 31 Mass.App.Ct. 914, 576 N.E.2d 688 (1991), review denied 411 Mass. 1103, 579 N.E.2d 1361 (1991): “… conservative principles should apply to the determination of what is a reasonable fee when the pocket from which the fee is drawn belongs to someone other than the person who hired the lawyer.”

Price v. Cole, 31 Mass.App.Ct. 1, 574 N.E.2d 403 (1991); Smith v. Consalvo, 37 Mass.App.Ct. 192, 638 N.E.2d 501 (1994).

[FN10] Lewis v. National Shawmut Bank, 303 Mass. 187, 21 N.E.2d 254 (1939); Hayden v. Hayden, 326 Mass. 587, 96 N.E.2d 136 (1950); Boynton v. Tarbell, 272 Mass. 142, 172 N.E. 340 (1930). But see Robbins v. Robbins, 19 Mass.App.Ct. 538, 476 N.E.2d 230 (1985), appeal after remand 22 Mass.App.Ct. 982, 496 N.E.2d 456 (1986) where it is indicated that this standard may appear to be too low in an inflationary period.

[FN11] Heller v. Silverbranch Construction Corporation, 376 Mass. 621, 382 N.E.2d 1065 (1978); Pemberton v. Pemberton, 9 Mass.App.Ct. 9, 411 N.E.2d 1305 (1980); DeCourcey v. Weston Racquet Club, Inc., 15 Mass.App.Ct. 373, 445 N.E.2d 1087 (1983), review denied 389 Mass. 1101, 448 N.E.2d 767 (1983).

[FN12] Hanner v. Classic Auto Body, Inc., 10 Mass.App.Ct. 121, 406 N.E.2d 686 (1980). But see Simon v. Solomon, 385 Mass. 91, 431 N.E.2d 556 (1982) in which three separately rendered verdicts represented damage from a single chain of events.

[FN13] Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 475 N.E.2d 392 (1985).

Yorke Management v. Castro, 406 Mass. 17, 546 N.E.2d 342 (1989).

Compare Com. v. Phinney, 448 Mass. 621, 863 N.E.2d 496 (2007), holding that the award for appellate attorney fees should be calculated based on what would be reasonable for private counsel to charge in the circumstances, where the defendant's attorney was privately retained, not court appointed. The court did find some duplication of effort, however, and reduced the fees accordingly.

[FN14] See for example Commissioner of Insurance v. Massachusetts Accident Co., 318 Mass. 238, 61 N.E.2d 137 (1945).

[FN15] Margolies v. Hopkins, 401 Mass. 88, 514 N.E.2d 1079 (1987).

[FN16] Handy v. Penal Institutions Commissioner of Boston, 412 Mass. 759, 592 N.E.2d 1303 (1992).

Arlington Trust Co. v. Caimi, 414 Mass. 839, 610 N.E.2d 948 (1993): “While contemporaneous time records go a long way to document a claim for attorney's fees, it cannot be said that such time records are, as a matter of law, a condition precedent to such an award.”

17C MAPRAC § 61.1

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